author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WINSTON, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1984
    Opinion filed November 27, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Laura M. Suffield, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Larry Winston, was charged with two counts of murder, one count of armed violence and one count of concealment of a homicidal death. Following a bench trial, defendant was found not guilty of murder by reason of insanity and not guilty of armed violence and concealment of a homicide. The trial court imposed an 80-year period of commitment on defendant, who now brings this appeal. The following issues are raised on appeal.

(1) Whether the trial court’s determination that defendant’s offense was brutal and heinous after finding defendant not guilty of murder by reason of insanity was legally inconsistent and barred by collateral estoppel; (2) whether application of the extended-term statute to section 5—2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—2—4(b)), which regulates proceedings after acquittal by reason of insanity, violates due process; (3) whether the trial court’s finding that defendant’s offense was brutal and heinous, warranting imposition of an extended term, constituted a violation of the eighth amendment prohibition against cruel and unusual punishment (U.S. Const., amend. VIII); (4) whether the State proved by clear and convincing evidence that the defendant was in need of inpatient rather than outpatient treatment.

The following testimony was presented at trial. The State presented Chicago police officer Louis Skylis, who testified that on October 1, 1985, he responded to a call at 306 West 111th Street. He was met at the doorway by Willie Smith, who told him that defendant had killed Leonard Rhodes and that the body was in the basement. The officer proceeded downstairs to a laundry utility room, where he observed the victim’s body wrapped in a blanket placed across the top of a washing machine and drier. After the officer returned upstairs and advised defendant of his rights, the defendant admitted that he had killed the victim and then showed the officer the butcher knife which he had used in the murder. Officer Skylis placed defendant under arrest and noticed that defendant’s hands were wrapped in gauze bandages that had some blood on them. Defendant informed Officer Skylis that his hands had been cut in the fight. The officer also observed that there were blood spots on the walls between the kitchen and the living room and that some of the spots appeared smeared or wiped off. Officer Skylis identified a picture of the laundry-utility room depicting the victim’s body lying across the top of the washer and drier with the victim’s head hanging down into the laundry tub.

The State then presented Chicago police officer John Paladino. In addition to corroborating the testimony of Officer Skylis, he testified that the victim’s limbs had been severed at the shoulder and that he had opened a plastic bag located near the washer and drier and discovered that the bag contained the victim’s severed arms and hands.

Dr. Robert Kirchner testified by way of stipulation regarding the multiple stab wounds and post-mortem dismemberment of arms and partial decapitation. Following the State’s evidence, defendant moved for a directed finding of not guilty. The trial court reserved ruling on the motion.

Defendant called Thomas Gambino, who testified that he is an investigator employed by the public defender’s office. Gambino photographed defendant, at which time he observed that defendant’s left arm was in a sling and cast, his left palm was scarred and his right palm was scarred and marked near the base of his first finger.

Defendant next called Detective Frank Glynn, who testified that after defendant was advised of his Miranda rights, defendant told him that he had gone to his niece’s house in the morning and met with Leonard Rhodes, the victim. Earlier that day, defendant’s niece had had a baby, and Rhodes was the father of the baby. After defendant and Rhodes had a conversation, defendant told Detective Glynn that Rhodes “went off.” Defendant walked to the front door and was about to leave when Rhodes pushed him. After defendant turned around and punched Rhodes in the face or chest, Rhodes ran toward the kitchen and returned with a knife. In an attempt to defend himself, defendant wrestled the knife away from Rhodes and stabbed him many times. Defendant told Officer Glynn that he chased Rhodes through the house and stabbed him in the back and on the sides and that he then hid Rhodes’ body in the basement.

Ollie Winston, defendant’s brother, testified that on October 1, 1985, shortly after 11:30 a.m., he received a phone call from defendant, who requested that he stop by his sister’s house on his way to work. When Ollie arrived at his sister’s house, defendant answered the door. Defendant then told Ollie that he and Rhodes had been talking when Rhodes suddenly jumped up and “went off” on him. Upon questioning, defendant told Ollie that he didn’t know if Rhodes was all right. Winston further testified that defendant rarely participated in family functions because he had a phobia regarding crowds, including the family.

Lillie Smith, defendant’s sister, testified that on October 1, 1985, her daughter gave birth to a baby fathered by Leonard Rhodes. When she returned home from the hospital, defendant answered the door. Defendant showed Lillie his hands and explained that he had killed Rhodes and that the body was downstairs. After Lillie’s husband checked the basement and confirmed that Rhodes was dead, Lillie contacted the police while defendant sat on the couch.

Detective Paladino testified that defendant subsequently gave a statement to him that detailed the events of October 1, 1985. Defendant stated that when he offered congratulations to Rhodes on the birth of the baby, Rhodes developed “an attitude” and “went off” on defendant. Defendant attempted to leave the house, but Rhodes pushed him into the door. Defendant then turned around and punched Rhodes, after which Rhodes ran into the kitchen and returned with a knife. Following a struggle, Rhodes dropped the knife and ran back toward the kitchen. Defendant assumed Rhodes was going to get another knife, so he picked up the first knife, chased Rhodes and stabbed him many times. Rhodes ran downstairs to his basement bedroom and fell across the bed. Although defendant’s recollection was hazy, he realized that he was standing over Rhodes and that Rhodes was dead. Defendant stated that he guessed he moved Rhodes’ body onto the washer and drier, although he did not remember. After making certain changes in his written statement, defendant refused to sign it.

Drs. Karen Smith, Matthew Markos and Albert Stipes also testified on behalf of defendant. Each doctor found defendant to be legally insane and unable to conform his conduct to the requirements of the law at the time he committed the murder. Dr. Markos further found defendant unable to appreciate the criminality of his acts due to a psychotic disorder, while Drs. Smith and Stipes did not form an opinion as to whether defendant could appreciate the criminality of his acts.

In rebuttal, the State presented Dr. Gerson Kaplan, who testified that defendant could appreciate the criminality of his acts, that he could conform his conduct to the requirements of the law and that he was legally sane at the time he committed the murder.

At the conclusion of the evidence, the trial court found defendant not guilty of murder by reason of insanity and not guilty of armed violence and concealing a homicide. Pursuant to the trial court’s order, defendant remained as an inpatient while the Department of Mental Health prepared its report.

On March 17, 1987, a commitment hearing was held. The State presented Dr. Susan Nowak, a psychiatrist licensed to practice in Illinois. Dr. Nowak testified that she had interviewed defendant on four separate occasions, from December 1986 through January 1987, each interview lasting approximately IV2 hours. She also had interviewed defendant’s mother, sister and brother for approximately two hours in January 1987 and had reviewed the relevant police reports, evaluations conducted by three different psychiatrists on seven different occasions and the results of the psychological testing performed by a fourth doctor. After consideration of this information, Dr. Nowak determined that defendant has had psychological difficulties since the early 1970s. These difficulties were demonstrated by his behavior, which included an unusual use of alcohol, including drinking at work, and an episode with amphetamines in an attempt to control his eating. This behavior also reflected defendant’s preoccupation with morbid obesity. She also concluded that defendant suffers from a number of phobic symptoms and anxiety attacks.

On cross-examination, Dr. Nowak testified that although she did not presently diagnose any major depression, psychotic disorder or organic disorder, she found defendant to have severe psychological problems. Dr. Nowak testified extensively regarding defendant’s response to stress, including his rigidity with respect to responsibility and his difficulties in dealing with his family. She concluded that he was dangerous to himself and to others and that he was in need of inpatient treatment. Dr. Nowak also testified that she believed it was a possibility that defendant would commit suicide.

The trial court imposed a maximum 80-year period of commitment on defendant based upon defendant’s brutal and heinous conduct. Defendant now brings this appeal.

Defendant argues that his acquittal on grounds of insanity was legally inconsistent with the trial court’s subsequent finding that the offense was accompanied by brutal and heinous conduct indicative of wanton cruelty. He contends that because the court determined that he was insane at the time the offense was committed, the court is collaterally estopped from finding that he exercised brutal and heinous conduct when he killed Rhodes. Defendant argues that wanton cruelty requires the conscious infliction of pain on another for the sadistic enjoyment of it (see, e.g., People v. Jones (1979), 73 Ill. App. 3d 99, 103, 391 N.E.2d 767), whereas an act committed by one who is insane is an involuntary act. (People v. Clark (1981), 102 Ill. App. 3d 414, 417, 429 N.E.2d 1255.) As the insanity defense exculpates a person with impaired volition (People v. Grant (1978), 71 Ill. 2d 551, 558, 377 N.E.2d 4), an involuntary act cannot be indicative of wanton cruelty, which by definition requires conscious conduct. Defendant maintains that a finding of wanton cruelty, therefore, is barred by collateral estoppel. Relying on People v. Thomas (1988), 168 Ill. App. 3d 113, 522 N.E.2d 253, the State claims that a trial court’s determination that a defendant was legally insane at the time of the offense is not legally inconsistent with the trial court’s application of an extended term based on defendant’s brutal and heinous conduct in committing the offense and, therefore, the finding of wanton cruelty is not barred by collateral estoppel.

Collateral estoppel is embodied in the fifth amendment guarantee against double jeopardy. (Ashe v. Swenson (1970), 397 U.S. 436, 444-45, 25 L. Ed. 2d 469, 476, 90 S. Ct. 1189, 1195.) Under the doctrine of collateral estoppel, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in a future lawsuit. People v. Frias (1983), 99 Ill. 2d 193, 202, 457 N.E.2d 1233.

The Unified Code of Corrections requires that admission into custody of the Department of Mental Health and Developmental Disabilities of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—2—4(b).) The maximum period of commitment for a person acquitted by reason of insanity may not exceed the maximum length of time that the defendant would have been required to serve had he been convicted and received the maximum sentence for the most serious crime under section 5—8—1 of the Code. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1.) Illinois law, however, provides that a judge may extend the sentence of an offender to a term of imprisonment in excess of the maximum sentence that section 5—8—1 authorizes if the judge finds that any of the factors in aggravation are present. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2.) One of the factors in aggravation is whether the offense was accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).) Where there is a finding of aggravation under this section, the term of imprisonment may be extended to be not less than 40 and not more than 80 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2.) In People v. Thomas (1988), 168 Ill. App. 3d 113, 522 N.E.2d 253, the court held that application of the extended term based upon brutal and heinous behavior is determined, not by defendant’s state of mind, but rather by the nature of the offense. Thomas, 168 Ill. App. 3d at 123.

The defendant in Thomas was found not guilty by reason of insanity of beating the victim to death with a baseball bat following an argument over a haircut. After the acquittal, the trial court imposed an extended-term sentence based upon the defendant’s brutal and heinous conduct in committing the offense. On appeal, defendant advanced essentially the same argument that is before this court: whether the trial court was collaterally estopped from making a finding of wanton cruelty once the court had found the defendant lacked the state of mind to support a finding of guilty. As noted above, the court held that application of the extended-term statute is determined by the offense rather than by the extent or nature of the defendant’s participation. Thomas, 168 Ill. App. 3d at 123; see also People v. Larson (1985), 132 Ill. App. 3d 594, 598, 478 N.E.2d 439; People v. Clay (1984), 124 Ill. App. 3d 140, 154, 463 N.E.2d 929; People v. Cox (1983), 113 Ill. App. 3d 136,138-39, 446 N.E.2d 1280.

The court in Thomas noted that there is no correlation between the seriousness of an offense and the length of time necessary for recovery; an insanity acquittee’s confinement is based solely upon his continuing illness and the danger he poses to the community. (Thomas, 168 Ill. App. 3d at 121, citing Jones v. United States (1983), 463 U.S. 354, 368-69, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3051-52; see also People v. Williams (1986), 140 Ill. App. 3d 216, 228, 488 N.E.2d 649.) In the case at bar, consistent with Thomas, the trial court applied the extended-term sentence based on the nature of the offense rather than on the defendant’s state of mind. The trial court properly considered the intensity of the attack and the violence of the subsequent mutilation of the victim in determining that an extended-term sentence was warranted.

People v. Grayson (1974), 58 Ill. 2d 260, 319 N.E.2d 43, cited by defendant in support of his contention that collateral estoppel is applicable here,' is distinguishable. The defendant in Grayson was tried for his participation in a robbery committed while he was on probation. After his acquittal, the State instituted proceedings to revoke defendant’s probation based on the robbery charges. On appeal, the court held that the ultimate fact of identity had been determined by a final judgment at trial and therefore the State was collaterally estopped from relitigating that issue in a probation revocation proceeding regardless of the different standards of proof. (Grayson, 58 Ill. 2d at 265.) In the instant case, the issue of defendant’s state of mind was not relitigated at his commitment hearing, and he therefore was not subjected to double jeopardy.

Defendant also relies on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, in support of the argument that the defendant’s state of mind at the time of the offense is a relevant factor in computing an extended-term sentence. The defendant in Evans was charged with murder and sentenced to an extended term when a stray bullet from his gun killed an unintended victim. The supreme court affirmed the appellate court’s ruling that the voluntary manslaughter offense was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Evans, 87 Ill. 2d at 87.) While the court considered the defendant’s state of mind toward the intended victim, it did not focus on the defendant’s state of mind with regard to the actual victim. Moreover, as the court in Thomas pointed out, the defendant in Evans was not an insanity acquittee, and therefore, “[sjociety’s interest in being protected from the dangerous propensities of an insane acquittee who is prematurely released from confinement” was not at issue. Thomas, 168 Ill. App. 3d at 125.

Defendant next contends that the trial court’s imposition of the extended-term statute to a commitment period violates due process and is contrary to the sentencing scheme intended by the legislature. He maintains that the 80-year extended term imposed not only violates the automatic commitment formula set out in section 5—2—4(b) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—2—4(b)), but also the plain language of the extended-term provision of section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5— 3.2). Defendant urges that consistent with section 5—8—1 (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1), which provides that murder is punishable for a term of not less than 20 years and not more than 40 years, this court should reduce the time of defendant’s commitment from 80 years to 40 years, less credit .for good behavior. Defendant maintains that the extended-term provisions were never intended by the legislature to be applied to commitment sentences and cites People v. Spudic (1986), 144 Ill. App. 3d 1071, 495 N.E. 2d 616, as authority that the Unified Code of Corrections does not “permit a trial court to extend a period of commitment beyond the maximum term set by reference to subsection (b) of the statute.” Spudic, 144 Ill. App. 3d at 1075.

Commitment following an acquittal by reason of insanity is addressed in section 5—2—4(b) of the Unified Code of Corrections, which provides in relevant part:

“[T]he initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time. Such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-2-4(b).

Under the existing sentencing scheme, the Unified Code of Corrections provides:

“(1) for murder, (a) a term shall be not less than 20 years and not more than 40 years ***.” Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1.

The extended-term statute is set out in section 5—8—2 of the Code. It provides:

“(a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5—8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5—5—3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
(1) for murder, a term shall be not less than 40 years and not more than 80 years ***.” Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2.

The use of the term “maximum sentence” in section 5—2— 4(b) contemplates that a trial court must refer to the existing sentencing scheme in order to determine the sanction that could be imposed, an issue we addressed in People v. Larson (1985), 132 Ill. App. 3d 594, 478 N.E.2d 439. Although there is no history of the extended-term statute specifically reflecting the legislative intent that the statute be applicable to commitments under section 5—2—4(b), as we noted in Larson, neither is there anything in the plain language of section 5—2—4(b) indicating that the words “maximum sentence” were intended to be limited by the 40-year maximum sentence provisions of section 5—8—1 of the Unified Code of Corrections. Our view here, as in Larson, is that had the legislature intended to impose such a limitation, the statute would have included express language setting forth the limitation. (Larson, 132 Ill. App. 3d at 597.) When read in conjunction with the extended-term statute, we think it is clear that the maximum time defendant could be required to serve is 80 years.

People v. Spudic (1986), 144 Ill. App. 3d 1071, 495 N.E.2d 616, which defendant relies upon to support his contention that the maximum sentence is limited by the provisions of section 5—8—1, is distinguishable. The defendant in Spudie was found not guilty of felony theft by reason of insanity. He was sentenced to the maximum five-year commitment period, less credit for good behavior. After a three-year period of commitment, defendant filed a motion for discharge which was denied. While the parties agreed that with credit for good behavior, the maximum term of incarceration would have been 2V2 years, the trial court refused to discharge defendant based on its finding that defendant still required mental health services. The appellate court reversed the denial of the petition for discharge on the basis that the defendant had already been confined in excess of the maximum length of time permitted under the Uniform Code of Corrections, but went on to note that if the maximum term had been reached and the acquittee had not recovered from his mental illness, he still would be subject to “civil” commitment under the terms of the Mental Health and Developmental Disabilities Code. (Spudic, 144 Ill. App. 3d at 1075-76.) Here, however, the defendant is asking this court to determine the meaning of the statutory language “maximum length of time,” not to determine whether the maximum term had been exceeded.

Defendant’s contention that a “conviction” is a necessary prerequisite to applying the extended-term provision has no merit. The plain language of section 5—2—4(b) states that a commitment period shall not exceed the maximum length of time that the defendant would have been required to serve had he been convicted. Thus the language of the extended-term provision calling for a “conviction” automatically embodies commitment proceedings without specific reference.

Defendant next contends that the trial court’s imposition of the extended-term statute to a commitment sentence violates due process. The State’s response is that the application of the extended-term statute to criminal commitment periods is not violative of due process as its application reasonably balances and protects the interests of society and the insanity acquittee.

When determining whether a statute violates due process, we must determine whether the statute is reasonably designed to remedy evils which the legislature has determined to be a threat to the public health, safety and general welfare. (People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029.) The due process clause requires only that a statute be reasonably designed to accomplish its purpose, not that it be the best means of accomplishing it. Bell v. Wolfish (1979), 441 U.S. 520, 542-43, 60 L. Ed. 2d 447, 470-71, 99 S. Ct. 1861, 1875-76; People v. Burton (1981), 100 Ill. App. 3d 1021, 1023, 427 N.E.2d 625.

The primary objective of section 5—2—4 is to insure that insanity acquittees are not indeterminately institutionalized while at the same time protecting society from the premature release of mentally ill persons who have been proved capable of dangerous acts. (Larson, 132 Ill. App. 3d at 600.) Application of the extended-term statute is not inconsistent with this objective. Initially, application of the extended-term statute to section 5—2—4(b) furthers the State’s interest by allowing the courts to consider the dangerousness of the acquittee’s acts in setting his maximum commitment period. It also provides for a potentially longer period in which the court can monitor the treatment being rendered to a defendant and review any decision to release him.

In addition, utilization of the extended-term statute protects the acquittee from the threat of indeterminate commitment because it provides for a maximum sentence which automatically sets a definite outer limit to defendant’s commitment period. Defendant is protected from unjustified institutionalization by provisions requiring periodic review of his condition by mental health professionals and release if he regains his sanity and is no longer dangerous to himself or society. Accordingly, discretionary imposition of the extended-term statute in setting the maximum period of criminal commitment reasonably balances and protects the interests of society and those of the insanity acquittee, and thus, does not violate due process.

Defendant also maintains that the imposition of an extended sentence in the instant case constitutes a violation of the eighth amendment of the United States Constitution and article I, section 11, of the Illinois Constitution’s prohibitions against cruel and unusual punishment in that it is punishment in disguise and disproportional. Defendant argues that the imposition of the extended-term sentencing statute not only fails to serve a treatment rationale but is equivalent to making it a criminal offense for a person to be mentally ill, in contravention of Robinson v. California (1962), 370 U.S. 660, 667, 8 L. Ed. 2d 758, 763, 82 S. Ct. 1417, 1420-21. He urges that the ruling in Robinson, that a criminal penalty cannot be inflicted on the basis of mere status, is applicable here.

Under Illinois law, the fact that the maximum period of criminal commitment is determined by reference to the extended-term statute does not mean that a defendant’s commitment period constitutes a “sentence” or “punishment.” (See, e.g., People v. Thomas (1988), 168 Ill. App. 3d 113, 522 N.E.2d 253; People v. Larson (1985), 132 Ill. App. 3d 594, 478 N.E.2d 439.) In Larson we found that the application of the extended-term statute to an insanity acquittee does not constitute punishment, as the purpose of the criminal commitment is treatment of the mental illness, and the length of the confinement is limited to the time necessary for recovery. We also focused on the fact that application of the extended-term statute does not negate the rehabilitative focus of criminal commitment, as the defendant is still committed for an indefinite period and may be released any time he is found to have regained sanity. (Larson, 132 Ill. App. 3d at 598.) In light of Larson, we reject defendant’s contention that application of the extended-term statute constitutes cruel and unusual punishment. Defendant’s reliance on Robinson v. California is also misplaced. While the Court in Robinson held that merely being a narcotics addict would not be a criminal offense, the Court recognized that a State could impose some form of compulsory treatment, including involuntary confinement. Robinson, 370 U.S. at 665, 8 L. Ed. 2d at 763, 82 S. Ct. at 1420.

With respect to the question of disproportionality of an extended-term sentence as applied to insanity acquittees, defendant cites Solem v. Helm (1983), 463 U.S. 277, 290-91, 77 L. Ed. 2d 637, 649-50, 103 S. Ct. 3001, 3010, which requires a reviewing court to consider:

“(1) the gravity of the offense and the harshness of the penalty;
(2) a comparison of sentences imposed on other criminals in the same jurisdiction; and
(3) a comparison of sentences imposed in other jurisdictions.”

Although defendant concedes that the “gravity of the offense” is not relevant here based upon the acquittal, he urges this court to address the harshness of the penalty, which is relevant to the rehabilitative goals of the mental health system. As noted previously, defendant mistakenly equates the defendant’s commitment period with a sentence based upon conviction, which it is not. As the court stated in People v. Thomas (1988), 168 Ill. App. 3d 113, 119-20, 522 N.E.2d 253, the commitment period is not a penalty. It is based upon the defendant’s continuing illness and perceived dangerousness. Defendant’s comparisons between the commitment order here and sentences imposed upon other criminals in the same jurisdiction are not well founded in that the cases cited deal with convictions and sentences rather than insanity acquittals.

The final issue raised by defendant is that the State failed to prove by clear and convincing evidence that he was in need of inpatient rather than outpatient treatment. He contends that Dr. Nowak’s testimony was contradictory and her opinion was based upon speculation. He notes that she admitted on cross-examination that he did not suffer from any major psychotic or major organic disorders, that he had admitted his rage, which was a significant step in treatment, that he had demonstrated control over his former alcohol and drug problems and that his behavior in the hospital was admirable. Defendant further points out that his treatment involved primarily counseling and that Dr. Nowak had admitted that he was responsible and would probably follow through on any treatment. The State maintains that Dr. Nowak’s testimony clearly established that defendant is potentially dangerous to himself and to others.

Under Illinois law, the State bears the burden of proving that the defendant must remain in custody for involuntary inpatient mental treatment by clear and convincing evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—2—4(g); In re Stephenson (1977), 67 Ill. 2d 544, 559, 367 N.E.2d 1273.) This evidence must derive from a current evaluation of the defendant’s conduct and state of mind, including medical evidence that he presents a danger to himself or others as a direct result of the mental disorder. (People v. Butler (1979), 69 Ill. App. 3d 556, 559, 387 N.E.2d 908.) While any finding as to dangerousness must be based upon a specific medical opinion regarding the defendant’s possible future conduct rather than merely upon a finding of mental illness (People v. Czyz (1980), 92 Ill. App. 3d 21, 26-27, 416 N.E.2d 1), it need not be predicated upon an expectation of immediate danger. People v. Sanchez (1984), 126 Ill. App. 3d 746, 751-52, 467 N.E.2d 1085.

Here the State produced a qualified expert, and the defendant had an opportunity to cross-examine Dr. Nowak for the purpose of bringing forth any factors in favor of outpatient care. The doctor’s testimony addressed not only past behavior but her conclusion that the underlying cause of defendant’s stress still exists and that lack of control could potentially be triggered by factors outside of defendant’s control if he is not under inpatient care. Dr. Nowak’s opinions were supported by substantial explanation in the record regarding defendant’s suppression of rage and his inability to cope with specific kinds of stress. We believe that Dr. Nowak’s testimony satisfied the requirements of section 5—2—4(a)(1)(B) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—2—4(a)(1)(B)), with respect to the issue of defendant’s need for inpatient rather than outpatient care.

In view of the foregoing, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN JUSTICE SCARIANO,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARIO ALFONSO, Defendant-Appellee.
    First District (2nd Division)
    No. 1—87—3650
    Opinion filed November 28, 1989.
    S CARI ANO, J., dissenting.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Lacoulton Walls, and Brian Grossman, Assistant State’s Attorneys, of counsel), for the People.
    Massucei, Blomquist, Brown & Judson, of Arlington Heights (Ernest Blomquist and Brian Crowley, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The subject of this appeal concerns the application of Illinois Supreme Court Rule 504 (107 Ill. 2d R. 504), which provides, in part, that appearance dates for traffic cases shall be set “not less than 14 days but within 49 days after the date of the arrest, whenever practicable.” The State contends the circuit court erroneously granted defendant’s motion to dismiss on the grounds that it was practicable to schedule defendant’s appearance date within the time period set forth by Supreme Court Rule 504.

On September 2, 1987, defendant was arrested in Schaumburg, Illinois, and charged with driving under the influence of alcohol, following too closely, failing to signal when required, driving on a revoked license and transportation of open alcohol, The arresting Schaumburg police officer scheduled defendant’s first court appearance for September 15, 1987, 13 days after the arrest. Defendant appeared on September 15 and requested a continuance to arrange for an attorney. The continuance was granted to October 20, 1987. On that date, defendant’s attorney appeared and orally moved to dismiss pursuant to Supreme Court Rule 504; in response, the State requested a continuance.

On October 27, 1987, a hearing was conducted on defendant’s written motion to dismiss. The arresting officer testified that he scheduled defendant’s court appearance on September 15, 1987. Although this date was one day earlier than the 14-day minimal time limit set forth in the guidelines of Supreme Court Rule 504, it was the officer’s first scheduled court date following defendant’s arrest. The officer’s next scheduled court date was October 20, 1987, 48 days after the arrest. The officer testified he did not set the court appearance on the later date because he thought it should be scheduled before the 46-day statutory summary license suspension deprived defendant of his driver’s license. The officer also stated that he was away at a five-day seminar beginning on October 5, 1987, and on vacation for nine days beginning on October 10,1987.

Defense counsel argued that the courtroom in which defendant’s case would have been heard was in the same facility in which the police station was located. Counsel also claimed there were at least nine court dates for the Schaumburg police department on the court calendar prosecuted by the State’s Attorney’s office within the prescribed time period. Lastly, defense counsel stated that the adjoining communities of Elk Grove Village, Hoffman Estates, and Hanover Park had assistant State’s Attorneys available during the time period at issue. In response, the State admitted that the case was not set within the 14- to 49-day period prescribed by Rule 504, but contended it was not practicable for the officer to do so.

The circuit court granted defendant’s motion to dismiss, pursuant to Rule 504. In determining that it was practicable for the arresting officer to schedule defendant’s court date within the 14- to 49-day period, the court observed that

“the officer was present in court and did testify on the 49th day on one of his regular key dates. *** [Ejvidently it was very practicable to be here because he was here and that was his scheduled date.”

The court then concluded:

“The officer had a practicable date on the 49th day, undisputed. He chose, in good faith, to set a different date because he was concerned about the 46 days of the summary suspension. *** However, under those Supreme Court Rules, I do not believe that Rule 504 was followed. It was obviously practicable to set the uniformed [sic] traffic citation for the 49th day. And, therefore the uniform traffic citation charges will be dismissed pursuant to Supreme Court Rule 504.”

The State appeals.

The State first contends the circuit court abused its discretion when it granted defendant’s motion to dismiss, suggesting defendant waived his right to present the motion by failing to do so at his initial court appearance. This contention is without merit; defendant’s objection to his appearance date was raised in a timely fashion and addressed thoroughly by the circuit court at the October 27, 1987, hearing.

The State next contends the dismissal was improper because it was impracticable to schedule defendant’s appearance date between the 14- to 49-day period set forth in Supreme Court Rule 504. It is undisputed that the appearance date was not set within the specified period. That fact, however, is not sufficient in and of itself to require dismissal; the rule is not absolute and is directory only as to the time limitations. (Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 356 N.E.2d 59; People v. Hutson (1977), 45 Ill. App. 3d 977, 360 N.E.2d 548.) If the appearance date is not set within the rule’s time period, the State is required to establish it was impracticable to do so. (Fagan, 64 Ill. 2d 264; People v. Hutson, 45 Ill. App. 3d at 979.) Further, the circuit court’s determination regarding the impracticability of setting that date within the prescribed period will not be disturbed absent an abuse of discretion. People v. Hutson, 45 Ill. App. 3d at 979.

The question on appeal, therefore, is not whether the failure to schedule defendant’s appearance date within the time period of Rule 504 caused “any injury to [the] public interest or [to] private rights,” as suggested by the dissent. (See 191 Ill. App. 3d at 967.) We do not read Fagan to allow noncompliance with the time periods prescribed in Rule 504 as long as no “injury to the public interest or to private rights” results; that language in Fagan supported the supreme court’s conclusion that those time limitations were directory. The court then states in the following paragraph (Fagan, 64 Ill. 2d at 268):

“To comply with the rule, an arresting officer should schedule [timely] appearance dates ‘whenever practicable, ’ notwithstanding the directory construction we hereby give to the rule.” (Emphasis added.)

The good intentions of the arresting officer or the convenience of the parties are irrelevant where, as here, it was practicable to set the appearance date within 14 to 49 days after the date of the arrest.

Therefore, we must determine whether the circuit court abused its discretion in finding that it was practicable to set the appearance date within the rule-prescribed 14- to 49-day period after defendant’s arrest. In the instant case, defendant’s appearance date was scheduled 13 days after his arrest, rather than the 14-day minimum specified in Rule 504. The circuit court expressly noted, however, that the arresting officer was scheduled for a regular court date, and in fact did appear in court, within a 49-day period after defendant’s arrest. Based upon these facts, the court found that it was practicable for the appearance date to be set within the time period provided in Rule 504. The record further indicates that the court recognized but rejected the “good faith” reason for setting the date outside of the 14- to 49-day span, instead closely following the plain language of the rule.

In light of its careful review of the circumstances, we simply cannot say the circuit court abused its discretion in finding that it was practicable to set the appearance date within the guidelines of Rule 504. The order of dismissal must be affirmed.

Affirmed.

BILANDIC, P.J., concurs.

JUSTICE SCARIANO,

dissenting:

I respectfully dissent. As the majority opinion notes, the supreme court held in Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 267, 356 N.E.2d 59, that the language of Rule 504 “clearly indicates that the 45-day period is not meant to be absolute.” The court went on to “observe that Rule 504 contains no language which denies the municipality’s right to prosecute or the trial court’s jurisdiction to hear the case where the appearance date is not timely set. *** Nor do we believe that violation of the rule would ordinarily cause any injury to public interest or private rights.” Accordingly, the court held “that the time limitations in Rule 504 are directory.” 64 Ill. 2d at 268.

Here, although it appears to have been practicable to have set the case within the time frame of the rule, the record establishes that the officer did not do so because he thought he had to schedule the matter before the defendant’s statutory summary suspension went into effect. The trial judge acknowledged that the officer “chose, in good faith, to set a different date because he was concerned about the 46 days of the summary suspension. Nobody could fault him for that.” Nevertheless, the judge dismissed the “charges pursuant to Supreme Court Rule 504” because “it was .obviously practicable to set the *** citation for the 49th day.”

Defendant does not disagree with the trial judge’s finding that Officer Young acted in good faith when he missed complying with Rule 504 by one day; nor does he dispute that the officer's good faith was based on the honest belief that defendant’s case had to be scheduled before the statutory summary suspension went into effect “because my next court day was the 20th of October, and I thought for the law enforcement sworn report it had to be 46 days or prior, or earlier.”

I therefore find it difficult to understand how Officer Young’s sincere attempt to accommodate defendant, in the words of our supreme court in Fagan, caused “any injury to [the] public interest or [to] private rights.” Nor do I read the supreme court’s holding in Fagan “that the time limitations in Rule 504 are directory” to be regarded as ad hoc. 64 Ill. 2d at 268.

Accordingly, I would reverse and remand the cause for trial.


author: PRESIDING JUSTICE UNVERZAGT

text:
      In re ESTATE OF THOMAS ARTHUR McGLOON, Deceased (Edna Mae McGloon, Claimant-Appellant, v. James J. Zmigrocki, Ex’r, et al., Respondents-Appellees).
    First District (2nd Division)
    No. 1—88—1600
    Opinion filed November 28, 1989.

      Rothschild, Barry & Myers, of Chicago, for appellant.
    Anthony J. Kogut, of Des Plaines, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Claimant, Edna Mae McGloon (Edna), appeals from an order of the circuit court of Cook County dismissing her claim against the estate of Thomas Arthur McGloon. On appeal, Edna contends that she is entitled to be reimbursed by the estate for unpaid support.

The various pleadings and documents filed in this case indicate that Thomas Arthur McGloon died testate on August 8, 1987. He was survived by his wife, Edna, and his adult daughter, Marianne Williams. His will was admitted to probate, and James J. Zmigroeki was appointed independent executor. The will provides that Edna would receive 34% of the estate, Marianne would receive 22% of the estate, decedent’s sister, Margaret, would receive 22%, and decedent’s friend, Gladys Anthony, would receive 22%.

Edna filed a claim against the estate for $120,000. In her claim and memorandum in support, she alleges that she and decedent were married in 1942, decedent abandoned her in 1946, and, thereafter, decedent failed and refused to support her. She alleges that decedent made between $86,000 and $100,000 per year from 1982 to 1986, that she has lived on a small pension and social security since 1977, and that in recent years she has resided in subsidized housing. Edna claimed $2,000-per-month support for the five-year period immediately prior to decedent’s death. She later modified her claim to reflect the amount actually expended by her for “necessaries” for the years in question, to wit, $37,459. Executor Zmigroeki and legatees Gladys Anthony and Margaret McGloon Smith filed motions to strike and dismiss Edna’s claim. Following a hearing on the surviving spouse’s award and the motions to dismiss Edna’s claim, Edna was awarded $13,500 as surviving spouse, and the $37,459 claim was dismissed.

Edna appeals the dismissal of her claim for support, contending that a husband has a common-law duty to support his wife and provide her necessaries and decedent failed to fulfill that duty. She contends that decedent had an obligation to her, that an obligation which one must meet with one’s own funds is a debt, and that an unsatisfied debt is an appropriate basis for a claim against an estate.

The executor and legatees (respondents) contend that section 15—1 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110½, par. 15—1) provides the exclusive remedy for a spouse seeking a support award from a deceased spouse’s estate. They contend that support or maintenance is a creature of statute and that Edna had statutory remedies for support that she could have pursued during decedent’s lifetime. She did not pursue those remedies, however, and she never obtained a support order. In the absence of a court order for support entered during decedent’s life, the respondents conclude, Edna has no cause of action against the estate for support allegedly due her during decedent’s lifetime, and she is limited to a surviving spouse’s award.

Edna responds that the statutory support provisions only provide for future or post-death support and her claim is for predeath support. She bases her claim on the common-law doctrine that a husband has a duty to supply his wife with necessaries. She contends that the existence of statutory support provisions does not affect the common-law duty and does not bar her action to enforce her common-law right to necessaries.

Edna relies heavily on the case of Bennett v. Bennett (1960), 27 Ill. App. 2d 24. In Bennett, the husband was the conservator of his incompetent wife’s estate. The wife/ward was confined for a period of time in the Peoria State Hospital. As a result of this confinement, the Illinois Department of Public Welfare (the Department) filed a claim against her estate for the amount expended by the Department for her care. The probate court approved payment of $1,640 to the Department from the estate and also approved a $106 payment to the husband/ conservator to reimburse him for advances he had made “for clothing and other necessities” for the wife/ward. The wife/ward objected to the conservator’s final report, contending that her husband, not her estate, was liable for the $1,640 cost of her confinement and the $106 in necessaries. She relied on the common-law proposition that a husband is responsible for his wife’s necessaries. The appellate court agreed with the wife/ward and held that hospitalization falls within the category of necessaries, that a husband has a common-law duty to supply his wife’s necessaries, and that this duty is not altered by the fact that the wife has ample means to finance the necessaries herself. The husband was required to reimburse the wife’s estate for the amount the estate expended for the necessaries.

Significantly, the husband in Bennett argued that, pursuant to section 15 of “An Act to revise the law in relation to husband and wife” (Family expense statute) (Ill. Rev. Stat. 1959, ch. 68, par. 15), the wife had a joint responsibility with him for the expenses and the claim was properly paid from her funds. The court held that although the family expense statute provided to third parties a remedy against both spouses for expenses, as between husband and wife the duty to supply necessaries still rested with the husband and a wife had a right to reimbursement if her husband breached that duty.

We believe that the doctrines relied on in Bennett are no longer the law in Illinois. Edna admits that pursuant to section 18 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §18), which prohibits discrimination on the basis of sex, either spouse may be required to provide necessaries for the other. We agree. Support obligations are no longer imposed on the basis of gender. Statutory provisions setting out support obligations are consistent with the constitutional mandate and impose support obligations on husbands and wives equally. (See Ill. Rev. Stat. 1987, ch. 23, par. 10—2 (“A husband is liable for the support of his wife and a wife for the support of her husband”); Ill. Rev. Stat. 1987, ch. 40, par. 504(a) (“the court may grant a maintenance order for either spouse”); Ill. Rev. Stat. 1987, ch. 40, par. 1101 (“Every person who shall, without any lawful excuse, neglect or refuse to provide for the support or maintenance of his [or her] spouse, said spouse being in need of such support or maintenance, *** shall be deemed guilty of a Class A misdemeanor”).) Clearly, common-law doctrines which impose a duty of support solely on the husband are inconsistent with the constitutional mandate and the statutory scheme and are no longer valid.

Furthermore, in Bennett, the wife was able to retain reimbursement for necessaries without a showing of need. Statutory support provisions now require a showing of need before spousal support can be awarded. Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504(a)) provides that courts may provide maintenance in certain proceedings only upon a finding that the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs and is unable to support himself. Section 1 of the Non-support of Spouse and Children Act (Ill. Rev. Stat. 1987, ch. 40, par. 1101) imposes liability on a spouse for nonsupport only when the other spouse is in need of such support or maintenance. Clearly, courts are now required to consider the parties’ relative financial situations before awarding support under these statutes. Inasmuch as Bennett permits a support award in the absence of a showing of need, it is inconsistent with the statutory support scheme, and we conclude that it is not the law in Illinois today.

We believe, again contrary to Bennett, that analysis of the facts of this case in light of the family expense statute (now Ill. Rev. Stat. 1987, ch. 40, par. 1015) indicates that Edna does not have a valid claim against her husband’s estate.

The relevant portion of the family expense statute exists today in the same form it did when Bennett was decided in 1960. The statute provides, in relevant part:

“The expenses of the family *** shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” (Ill. Rev. Stat. 1987, ch. 40, par. 1015.)

As the Bennett court pointed, out, the statute provides third parties a remedy against both spouses for expenses. (Bennett, 27 Ill. App. 2d at 29.) However, the statute establishes that both husband and wife are jointly and severally liable for expenses of the family. (White v. Neeland (1983), 114 Ill. App. 3d 174, 175.) Family expenses include necessaries. (White, 114 Ill. App. 3d at 175.) Although Edna and her husband lived apart, expenses incurred to supply a wife with necessaries are family expenses under the statute if she was living apart from her husband through no fault of her own. (See Abraham Lincoln Memorial Hospital Corp. v. Gordon (1969), 111 Ill. App. 2d 179, 184-85.) Under the family expense statute, both Edna and decedent had an obligation to pay for her necessaries. Edna’s claim against decedent’s estate is in the nature of an action for a contribution for the amounts she expended for her necessaries. Where a statute imposes a several liability, there can be no action for contribution by one severally obligated. (Shapiro v. Chernoff (1972), 3 Ill. App. 3d 396, 406.) When one obligated under the family expense statute voluntarily pays family expenses, those voluntary payments are not reimbursable. In re Marriage of Van Winkle (1982), 107 Ill. App. 3d 73, 80.

We conclude that common-law doctrine does not support Edna’s claim against her deceased husband’s estate, and, further, her individual liability under the family expense statute precludes an action against the estate for reimbursement for payments she made for her own support.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

NASH and DUNN, JJ., concur.


author: JUSTICE RIZZI

text:
    EDWARD SIPIORA, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—86—3401
    Opinion filed November 29, 1989.
    Barry J. Novak, Martin Z. Craig, and Paul A. Grabowski, all of Hayt, Hayt & Landau, of Evanston, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Edward Sipiora (Sipiora), appeals from an order of the circuit court of Cook County which affirmed the decision of the Illinois Department of Public Aid (IDPA) denying Sipiora’s application for medical assistance. We reverse and remand.

On September 28, 1984, Sipiora applied for medical assistance under the IDPA’s aged, blind and disabled medical assistance program (AABD-MANG). Sipiora was hospitalized at St. Francis Hospital in Evanston from January 1984 until his death on January 1, 1985. Sipiora’s application requested that his eligibility for medical benefits in June, July, August and September of 1984 be determined. Sipiora’s application was denied by the county on November 14, 1984, for failure to timely submit verification of eligibility. Sipiora appealed, and following a hearing, IDPA reversed the denial of benefits and reopened the application because it found that Sipiora was unable to act on his own behalf, and others seeking to assist him were not afforded a reasonable opportunity to obtain the verification needed to establish eligibility. During the hearing, Sipiora’s representatives provided the hearing officer with financial documents. Among the documents were bank statements for the months of September through December 1984. The bank statements revealed that Sipiora’s bank account balance was $4,308.01 in September, $3,678.60 in October, $2,894.61 in November and $2,311.25 in December, which included a $1,155.55 deposit made that month.

When the county caseworker who originally evaluated Sipiora’s application received the order to reopen the case, she used the bank statement information for September through December 1984 obtained during the previous hearing and on February 7, 1985, again denied Sipiora’s application, this time finding that his assets exceeded the allowable limit of $2,250 for an individual applicant with a household of two individuals.

Sipiora appealed the second denial of his application for medical assistance, and another hearing was conducted. At the hearing held in April of 1985, Sipiora’s wife Lucille testified that she was never advised by IDPA that her husband’s assets could be reduced in order to qualify for assistance. She further testified that their current assets were approximately $500 to $600 and that her husband’s current hospital bill, after Medicare payments, was $323,087.33, an amount she would be unable to pay even if she liquidated all of her assets. The caseworker testified that Sipiora’s attorney was advised of IDPA’s asset reduction policy. In its final administrative decision, IDPA affirmed the county’s denial of benefits because Sipiora’s bank statement balance exceeded the allowed asset disregard amount on the date that eligibility was determined. Sipiora sought administrative review, and the circuit court affirmed IDPA’s denial of medical assistance. This appeal followed.

On appeal, Sipiora argues that IDPA’s determination that his assets exceeded the allowed amount is against the manifest weight of the evidence because it is unsupported by the record. He further argues that the decision is contrary to law because assets were not distinguished from income in reaching the determination and IDPA failed to inform him of his right to reduce his assets in order to qualify for benefits. Sipiora requests that (1) this matter be remanded to IDPA for a redetermination of his eligibility as if he had reduced his assets in the month he applied for benefits; (2) the court find that IDPA’s policy of prohibiting resource spend-down is contrary to law; and (3) IDPA be required to approve his application with appropriate backdating. IDPA agrees that the administrative decision denying benefits should be reversed and the matter remanded for redetermination of eligibility as if Sipiora had reduced his assets. However, IDPA requests that they be allowed to determine whether or not eligibility for medical assistance can be backdated for the months of June, July and August of 1984.

IDPA’s administrative procedures for determining eligibility for medical assistance benefits have been challenged in numerous cases. In Brengola-Sorrentino v. Department of Public Aid (1984), 129 Ill. App. 3d 566, 472 N.E.2d 877, this court held that IDPA’s failure to advise applicants for medical assistance who have excess assets that they have the option to reduce their assets to the appropriate level to ensure their eligibility for benefits was a violation of the applicants’ due process rights. (129 Ill. App. 3d at 572.) More recently, the Illinois Supreme Court in Hession v. Illinois Department of Public Aid (1989), 129 Ill. 2d 535, held that IDPA must consider the amount of an applicant’s incurred medical expenses as well as his or her assets when determining eligibility for medical assistance.

Application of Hession and Brengola-Sorrentino to the facts of the present case leads us to conclude that Sipiora’s application for medical assistance was improperly denied. In September 1984 when Sipiora initially applied for medicaid benefits, his bank account balance was $4,308.01, which was $2,058.01 over the applicable asset disregard level of $2,250. The county caseworker should have informed Sipiora or his family of his right to reduce his assets to the appropriate level by making an allowable expenditure, such as payment for a portion of his hospital bill. During the second administrative hearing, the caseworker testified that she did not inform Sipiora of the IDPA’s asset reduction policy because she did not have an opportunity to communicate with him. However, she testified that she informed his attorney of the policy at the January 1985 fair hearing. This problem could have been remedied by the inclusion of a simple explanation of the policy with the application form. IDPA’s failure to inform the Sipioras in September 1984 when they made their initial application for benefits effectively prevented them from fully utilizing the asset reduction policy. Accordingly, we find that IDPA’s failure to inform Sipiora of its asset reduction policy at the time of his initial application resulted in the improper denial of his medical benefits.

In addition, at the time of his initial application, Sipiora had incurred at least $90,000 in medical bills. To the extent that Sipiora’s cash assets exceeded the asset disregard level, the caseworker should have considered his incurred hospital expenses when determining his eligibility for medical benefits. Therefore, Sipiora is entitled to receive medical benefits once his incurred medical expenses exceed his excess assets (above the disregard level) on the date that eligibility is determined. This resource spend down analysis would also apply to any eligibility determination for the months of October, November and December, as well as the backdated application period of June, July and August 1984, when Sipiora’s bank account balance exceeded the asset disregard level. Because of our resolution of these issues, we find it unnecessary to address the other issues raised on appeal.

Accordingly, the trial court’s order affirming IDPA’s decision is reversed, IDPA’s determination of ineligibility is vacated, and this cause is remanded for a redetermination of Sipiora’s eligibility for medical benefits in a manner consistent with this opinion.

Reversed and remanded with directions.

FREEMAN, P.J., and McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRIMITIVO RIVERA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—3235
    Opinion filed November 29, 1989.
    Magee, Collins & Lodge, of Chicago (Brian M. Collins, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, Primitivo Rivera, was convicted of possession of a stolen motor vehicle and sentenced to three years of imprisonment. He prosecutes a timely appeal to this court seeking reversal of his conviction and sentence. He argues on appeal that: (1) the trial court erred in allowing the State to amend the indictment; (2) he was not afforded a fair trial because the trial court commented on the credibility of the witnesses; (3) the trial court erred in refusing to instruct the jury regarding the definition of stolen property and the offense of criminal trespass to vehicle; (4) in closing argument, the assistant State’s Attorney misstated the law regarding stolen property and shifted the burden of proof from the State to the defense; and (5) he was not proven guilty beyond a reasonable doubt. We reverse defendant’s conviction and sentence.

The following testimony was adduced at trial.

Officer Victor Rivera of the Chicago police department was on patrol on the evening of November 19, 1985. As he was passing by a used car lot at 2050 North Western Avenue, he observed an individual trying to drive a blue Oldsmobile out of the lot. The car’s headlights were not on. The car hit a cable stretched between two poles in the front of the lot. The cable did not break. Officer Rivera approached the driver of the car, whom he identified at trial as defendant, and asked him what he was doing in the car. Defendant replied that he had permission from the owner to move the car. Defendant also told Officer Rivera that the owner of the car was not at the lot. Officer Rivera turned the car’s ignition off, took the keys out of the car and locked the car. Officer Rivera then placed defendant under arrest.

Officer Rivera contacted Vincent Burba, the owner of the used car lot, met Mr. Burba at the lot and inspected the blue Oldsmobile. The car was a two-door 1978 model with vehicle identification number 3B47H9M479049. On cross-examination, Officer Rivera testified that he did not lose sight of either defendant or the car from the time that he first observed defendant driving the car. The car could not be driven from the lot because of the cable.

Vincent Burba is a used car dealer. On November 19, 1985, he had approximately 20 cars for sale at his used car lot. Defendant came to the lot to discuss the purchase of a 1979 blue Oldsmobile Cutlass. Approximately 15 minutes later, defendant left the lot without buying the car. Mr. Burba closed the lot at 7 p.m. and secured the lot with a cable. In the early morning hours of November 20, 1985, Mr. Burba was contacted by the police department and told to go to the car lot. Mr. Burba met a police officer at the car lot and inspected the lot. Mr. Burba noticed that the blue Oldsmobile was rammed against the security cable and could not be driven any further. Mr. Burba testified that he did not give defendant permission to enter or drive the car.

On cross-examination, Mr. Burba denied that he had sold defendant a “lemon” a few weeks before the incident and that, in their conversation of November 19, 1985, defendant was trying to exchange the Oldsmobile for the “lemon.” Mr. Burba testified that defendant was very pleased with the car that he had purchased and that defendant wanted to buy a second car. Mr. Burba also testified that the Oldsmobile did not leave the lot on November 19, 1985.

Opinion

Defendant was convicted of possession of a stolen motor vehicle. He maintains, however, that he was not proven guilty beyond a reasonable doubt. We agree.

Section 4—103 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95½, par. 4—103) provides in part:

“(a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted ***.”

Thus, a defendant may be convicted of a violation of section 4 — 103 if he possesses a vehicle knowing it to have been stolen or converted. The conviction may be predicated upon possession by the defendant of a vehicle stolen by a third person or a vehicle stolen by the defendant himself. (People v. Washington (1989), 184 Ill. App. 3d 703, 708, 540 N.E.2d 1014; People v. Mijoskov (1986), 140 Ill. App. 3d 473, 479-80, 488 N.E.2d 1374.) In the instant case, defendant’s conviction was predicated upon possession of a vehicle that he allegedly stole.

Section 16—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16—1) defense “theft” as follows:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
(c) Obtains by threat control over property of the owner; or
(d) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property; or
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.”

The phrase “obtains or exerts control” over property “includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.” (Ill. Rev. Stat. 1985, ch. 38, par. 15—8.) The words “taking” and “carrying away” are not defined in the statute. However, at common law, a taking was effectuated when a defendant obtained possession of property belonging to another person, that is when he exercised dominion and control over the property. There was a carrying away when a defendant moved property of another person. A carrying away presupposed a prior taking. 3 C. Torcia, Wharton’s Criminal Law §369 (14th ed. 1980).

In the instant case, the evidence shows that defendant obtained the keys to the Oldsmobile and attempted to drive the car out of the used car lot. He was prevented from doing so by the security cable in front of the lot. The cable caught between the grill and bumper of the car and stopped the forward progress of the car. The cable did not break, and the car never left the lot.

The evidence shows that defendant did not assert exclusive control or obtain physical dominion over the Oldsmobile. Defendant drove the car a few feet but his control of the car was incomplete. Defendant did not drive the car out of the lot; he could not break the cable through which Mr. Burba asserted control over the car.

In our opinion, defendant did not take or carry away the Oldsmobile. Nor did he sell, convey, or transfer the title to, interest in, or possession of the Oldsmobile. We also believe that defendant did not, in any other way, obtain or exert control over the car. He did not deprive Mr. Burba of control over and possession of the car. The proof failed to show that defendant stole the vehicle. (See People v. Mullinex (1984), 125 Ill. App. 3d 87, 91, 465 N.E.2d 135 (defendant did not assert actual control over the vehicle and could not be found guilty of theft where he was apprehended before he could remove the ignition mechanism and activate the vehicle).) Thus, defendant could not be found guilty of possession of a stolen vehicle.

Our holding is in accord with the common law requirement that there must be a taking or caption of property before a defendant can be convicted of larceny or theft. At common law, where the defendant took property and walked away with it, but was frustrated in his design because it was attached by a chain or cord to some object or building, and the chain or cord was not severed, there was no larceny because there was no caption. (3 C. Torcia, Wharton’s Criminal Law §381 (14th ed. 1980).) In People v. Lardner (1921), 300 Ill. 264, 267-68, 133 N.E. 375, our supreme court described the amount of control that a thief must exercise over property to be convicted of larceny:

“Where a thief, being discovered in the very act of taking, immediately abandons or returns the thing he has nevertheless committed larceny. Taking goods and putting them into a place for convenient removal is the taking of property, and if one takes the goods of another out of the place where they are put, although he is detected before they are actually carried from the owner’s premises, the crime is complete, as in case of the removal of an article from one place to another in the same house. (State v. Wilson, 1 N. J. L. 439.) Any change of location whereby complete control of the article is transferred from the true owner to the thief is sufficient evidence of the taking away. (Lundy v. State, 60 Ga. 143.) Where a thief put his hand in the pocket of another and lifted a pocketbook, although he was prevented by the owner from removing it from the pocket, it was held to be a taking. (Harrison v. People, 50 N.Y. 518.) The removal of goods from one place to another in a railway car constitutes a taking away. (State v. Rozeboom, 145 Iowa, 620.) The removal of goods from their accustomed place to another place in the same store is carrying away. (State v. Higgins, 88 Mo. 354.) If an article is secured by a string or chain which is not broken there is no taking which will constitute larceny. So taking a coat from a dummy figure in a store, which was not carried away because it was attached to the dummy by a chain and the dummy attached to the building, did not constitute larceny. (People v. Meyer, 75 Cal. 383.) Attempting to remove brass journals from a railroad car but not actually succeeding in doing so did not constitute larceny. State v. Knolle, 90 Mo. App. 238.”

See also People v. Baker (1937), 365 Ill. 328, 6 N.E.2d 665 (an essential element of larceny is a felonious taking by which the owner is deprived of possession and the thief acquires possession for an appreciable period of time, though such period may be but for a moment); Blakeney v. State (1943), 244 Ala. 262, 13 So. 2d 430 (to constitute larceny, there must be a severance of the possession of the owner and an actual possession by the wrongdoer); Senter v. State (Tex. Crim. App. 1967), 411 S.W.2d 742 (to constitute a taking, the property must be brought under the dominion and control of the defendant with the power to take it into his manual possession; if the property is attached to the owner or to something else the taking is not complete if the attempt to take the property is interrupted before it is severed or detached); Clark v. State (Tex. Crim. App. 1910), 128 S.W. 131 (in order to constitute theft the thief must have complete control of the thing sought to be stolen); Herr v. State (Tex. Crim. App. 1907), 105 S.W. 190 (things attached to a person must be severed therefrom before possession becomes absolute in the taker).

The offense of theft is now governed by statutory provisions. However, we believe that the common law requirement of caption is embodied in the statutory requirement that, to be convicted of theft, a defendant must “obtain or exert unauthorized control” over the property of another. (2 W. La Fave & A. Scott, Substantive Criminal Law §8.3 n.2 (1986).) The defendant must be shown to have asserted actual control or physical dominion over the property. In the instant case, defendant’s control over the Oldsmobile was imperfect. Defendant did not sever Mr. Burba’s control over the car and did not obtain exclusive control and possession of the car. Defendant did not effectuate a caption of the car and could not be found guilty of either theft or possession of a stolen vehicle.

Since we have determined that the proof failed to show that defendant was guilty beyond a reasonable doubt, we must reverse defendant’s conviction and sentence. Accordingly, we need not consider the other contentions raised by defendant on appeal.

The judgment of the circuit court of Cook County is reversed.

Reversed.

FREEMAN, P.J., and RIZZI, J., concur.