author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGGIE E. MILES, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0513
    Opinion filed August 6, 1991.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A Vermilion County jury convicted the defendant of two counts of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11), five counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(a)(1)), one count of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1)), one count of aggravated unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3.1), one count of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2(a)), and two counts of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)). On appeal, the defendant challenges the admission of deoxyribonucleic acid (DNA) evidence and population statistics, trial counsel’s effectiveness, jury instructions, and the sentences imposed. We affirm the convictions but remand for resentencing.

The victim, G.S., an adult, African-American female living alone in her home in Danville, Illinois, testified she was sleeping at 2:30 a.m. on November 3, 1987, when she heard a noise. She believed someone was in the house and she was trying to leave when the front door burst open, and a man entered and knocked her down. G.S. was not wearing her eyeglasses and could not see the man. She has never been able to identify the assailant because she is unable to see clearly without her glasses, and he prevented her from getting to them. G.S. could only tell police the assailant was an African-American male, approximately 5 feet 9 inches or 5 feet 10 inches tall, weighing 160 to 170 pounds.

The man searched the house for other occupants. He then picked up a kitchen knife and held it to G.S.’s throat. He took her to a bedroom and blindfolded her. During the next six hours, the intruder threatened to kill G.S. at least eight times. He sexually assaulted her twice (she testified there was vaginal penetration each time) and struck her at least five times. He ransacked her home, taking money and jewelry. He drove G.S., in her car, to an Easy Answer automatic teller machine and forced her to withdraw $200 from her checking account.

Upon returning to G.S.’s home, the intruder found G.S.’s savings account passbook. He allowed her to shower and dress and returned her eyeglasses to her, covered with duct tape. G.S. testified she kept duct tape in her utility room. He then drove her to her bank, Palmer Bank, in her car, and forced her to withdraw the $2,000 she had in her savings account. Business was transacted at a drive-up window. G.S. testified the man held a knife between her legs and threatened to use it if she did anything strange while at the bank. Her car had tinted windows.

After leaving the bank, the assailant drove a distance and stopped the car. He told G.S. he had to kill her; she pleaded for her life. The intruder suddenly jumped out of the car and ran. G.S. found another pair of her eyeglasses in the backseat of her car and went for help.

On cross-examination, G.S. testified she could not recall whether the defendant ejaculated during either sexual assault. She did not believe she could identify the defendant’s voice.

Tammy Rife, a teller at Palmer Bank, testified she was on duty at the drive-up window on November 3, 1987. A car pulled up to the window shortly after 8:30 a.m. She informed the occupants the bank did not open until 9 a.m. The male driver of the car told her they would wait. Rife did not know either occupant. She remembered the car had tinted windows. She talked only to the male driver. The female occupant kept her head down during the entire transaction and did not speak. Rife recorded the car’s license plate number as it was leaving, because she felt something was wrong, particularly since the female occupant was withdrawing all the money in her savings account and did not look up or talk. Rife could not identify the defendant.

John Deltuva, a Danville, Illinois, police officer, testified he spoke with G.S. at around 9:52 a.m. on November 3, 1987, and accompanied her to her house to investigate. He found a screen on a window of the screened front porch pulled out, the front door to the house open, and the front-door frame smashed. In the house, he found closet doors and drawers open and various articles strewn on the floors of each room.

Sergeant Bob Richard, of the Danville police department, testified he was the major crime scene supervisor for the department on November 3, 1987. He was present when the victim’s car was processed for fingerprints and went to G.S.’s house to lift fingerprints. At the house he saw a window and its frame, on the screened front porch, pulled out. The front door to the house had been forced open; the doorjamb around the deadbolt, which was still engaged, was splintered and the molding knocked to the floor. Three telephones were on the couch in the living room. The wires had been cut on two of the telephones, one was still connected. Richard found latent fingerprints on the window frame that had been pulled out, the window, the telephones, and the glass closet doors in G.S.’s bedroom. He also found a two-liter grape Crush soda bottle in G.S.’s bedroom, on a table next to her bed. He lifted and preserved more than 20 latent fingerprints at G.S.’s house.

Kevin Horath, a forensic scientist with the Illinois State Police, received evidence from Sergeant Richard, including 29 latent fingerprint lifts. He identified the defendant’s fingerprints on one of the telephones, a storm window, the inside of a porch window, and the grape Crush soda bottle.

William Frank, a forensic scientist with the Illinois State Police and DNA research coordinator for the State Police, received a sexual assault kit on November 22, 1988. He found no seminal material on any of the swabs in the kit. He found seminal stains on the bottom sheet police removed from the bed in G.S.’s bedroom, the site of one of the sexual assaults. After requesting additional samples from the defendant and G.S., Frank determined the defendant and G.S. have different blood types. On July 20, 1989, at a hearing on bail, the defendant requested DNA testing and expressed no objection to the taking of hair and blood samples.

Larry Thomason, a Danville police investigator, took G.S.’s statement on November 3, 1987, and recovered various items of evidence from her home. On July 18, 1989, he talked with the defendant, who was in prison, about a home invasion which occurred on November 3, 1987. The defendant denied committing the crime. The defendant had been sentenced to imprisonment on November 10,1987.

The State then began its presentation of DNA evidence. The State called Lisa Foreman, a Ph.D. research scientist at Cellmark Diagnostics (Cellmark), a DNA identification company in Germantown, Maryland. After presenting her credentials, Foreman explained DNA stands for deoxyribonucleic acid, an organic substance found in chromosomes, which are located in the center or nucleus of cells. DNA carries genetic instructions. The instructions, or genetic code, are expressed in the form of four building blocks and in the arrangement of the blocks. The blocks are called bases, each with a different name. DNA is shaped like a ladder; each rung of the ladder has two bases. There are DNA ladders in each nucleated cell in each person. If strung out end to end, the ladder would have 3.3 billion rungs. Of the 3.3 billion rungs of a DNA ladder in each cell, no two people are alike except for identical twins. The differences in the rungs on the DNA ladders account for the differences between individuals.

Foreman defined forensic testing or DNA identification as:

“a method of examining an individual and prying out, teasing out parts of the DNA where individuals tend to be different from one another. So it is a method of using the genetic markers that we can identify as distinctive from one individual to the next and using that information to uniquely identify an individual on the basis of their DNA.”

Foreman testified there is general consensus in the scientific community supporting the conclusion DNA forensic testing produces reliable results.

DNA forensic testing is used to determine the likelihood a sample of blood, tissue, or sperm came from a given person. Summarized in general terms, the process of DNA forensic testing is as follows. The laboratory begins with a sample of blood, hair, sperm, saliva, or any sample containing cells with DNA. The cell is opened and the chromosomes and the proteins which tightly bind the DNA are flushed away. This process is known as DNA extraction. The DNA ladder with its 3.3 billion rungs remains. The ladder must be shortened, however, to cope with the information it provides. Thus the DNA is then cut into random fragments using a restriction enzyme. The enzyme recognizes specific sequences of the DNA code and each time it sees a particular sequence, it cuts the DNA ladder. The DNA fragments are then “run out” on an agarose “jell,” a piece of gelatin substance to which the DNA is applied so it can be charged with an electrical current. The DNA sorts itself out by size after electricity has been applied, and small fragments pass through the “jell” matrix.

The next step is denaturization, where the ladder is cut in half down the middle and the two bases are separated. Hydrogen bonds the two bases on each rung of the ladder and the bond is broken by adding sodium hydroxide. This leaves single strands of DNA frozen in the “jell” matrix, all sorted by size. The information on the “jell” is transferred to a nylon or a special membrane which looks like a piece of paper. This enables scientists to repeatedly examine the DNA. This process is known as Southern blotting. Next, the scientist must determine where in the DNA sample the information needed resides. A DNA probe or series of probes is applied to the membrane. According to Foreman:

“A DNA probe is simply a piece of DNA that you are interested in. That’s all it is.
In our case we’re interested in pieces of DNA that allow us to individualize one person as distinct from another person. So we take a probe, a piece of DNA that is completely known to us, we know on what chromosome it resides, we know what its sequence is, we know everything about it, except what it looks like in each individual person, and we send that probe to the membrane. We radioactively label the probe so we can visualize it. We power it over the membrane and let it look for its complimentary [sic] sequence in our questioned sample.”

Excess probe, the probe that is not 100% complementary with the bases on the membrane, is then washed away and the membrane is exposed to a piece of X-ray film. Wherever the radioactive probe has found a complementary sequence, a black mark appears on the X ray. The X-ray film is developed and the result is known as an autoradiograph or, more commonly, an autorad.

Foreman testified the procedure described above is currently recognized and accepted within the scientific community:

“All of the procedures that are used in DNA analysis for identification purposes are cornerstone procedures that are relied upon in all areas of molecular biology including diagnostics and clinical applications.
The part that is somewhat different from the previous use of genetic markers in forensic application is the sensitivity of the markers, the probes that are being used to uniquely identify one person as distinct from another. ’ ’

Foreman then described the procedure for visually assessing the autorads to determine if there is a DNA match, a process which compares the known standard to a sample. This area of scientific endeavor is known as population genetics.

The procedures Foreman described are used, according to her, not only by Cellmark but also by the Federal Bureau of Investigation (FBI), Life Codes Corporation (another DNA identification company), and all State and local crime laboratories performing DNA research. Foreman then described Cellmark’s quality control and assurance procedures and explained the methods for verifying a DNA match.

On cross-examination, counsel questioned Foreman on Cellmark’s procedures for gathering samples for its data bases. Foreman presented additional general testimony regarding DNA testing and the methods by which the experiments were conducted.

Court and counsel then conducted a side-bar conference in which the defendant objected to the State’s offer of Foreman as an expert and to further evidence on DNA testing: “[M]y objection at this stage of the proceedings is that the scientific principles on the DNA testing are not sufficiently well established to meet the test of [Frye v. United States (D.C. Cir. 1923), 293 F. 1013,] as adopted by the Illinois Courts.” The defendant also objected to the application of the “product rule”:

“I would further *** make an objection to any testimony concerning the application of the product rule in this particular case, which I expect based upon was discosed [sic\ to the Court, to me, and Mr. DeArmond yesterday, will be testimony to the effect that Mr. Miles can be included in a population group of one in 280,000 blacks in the United States who could have donated the semen sample at issue here. *** I believe there is case authority in Illinois, which provides that even if it might be technically or scientifically correct to recite such odds or such testimony that can in certain instances be too prejudicial for the jury in that the jury may over emphasize [sic] such testimony.”

The court overruled the objections and qualified Foreman as an expert.

Mark Boodee, formerly a molecular biologist at Cellmark, testified Cellmark’s forensic procedures are commonly recognized and accepted within the molecular biology profession. Defense counsel objected to Boodee’s giving a scientific opinion or conclusion regarding tests he performed in this case, but the court overruled the objection.

Boodee testified Cellmark maintains the physical integrity of evidence samples by storing the evidence behind “at least three or four locked doors from the outside.” The sample was stored at four degrees Celsius. He indicated samples left at room temperature can be eroded by bacteria. Boodee received a piece of a bed sheet from Sergeant Richard on November 2, 1989, and a letter indicating the race of the defendant and G.S. Cellmark needed race information in order to compare the sample to the appropriate data base.

Boodee began the forensic process by separating the DNA of the suspect from the DNA of the victim, a process known as differential analysis. He then determined the quantity and quality of DNA present in the bed-sheet sample prior to cutting the DNA. Boodee contacted Sergeant Richard and requested blood samples from defendant and G.S. These samples were compared with the results of the bed-sheet tests. Boodee explained the procedures performed on the blood samples to extract the DNA. The bed-sheet samples never came into contact with the blood samples.

The first step in comparing the bed-sheet sample with the blood samples was to determine how much DNA was available for analysis, “because we like to have all of our lanes looking exactly the same. If you have too much DNA in one lane and not enough in another lane you’re going to have bands which are way blown out of proportion and other bands which you can barely see.” Next, Boodee visually assessed the bands on the autorads to identify matches. He found several DNA matches between the bed sheet and the blood sample defendant provided. Boodee then measured the DNA bands using a ruler.

The next step in the comparison process is called bioimaging. A computer photographed the autorads and the computer measured the DNA bands.

“Q. [Prosecutor:] Based upon your experience, education, and training were you able to form an opinion as to whether you had a match between the stain coming from the bed sheet and the sample from Reggie Miles within a reasonable degree of scientific certainty?
A. [Boodee:] Yes.
Q. And what was that opinion?
A. That the five bands from the bed sheet matched the five bands from Reggie Miles.”

Foreman took the stand again and testified she reviewed Boodee’s work, a standard practice at Cellmark. She stated her initial review of his work indicated he properly performed the tests. However, while reviewing the case file on the airplane en route to Danville, she discovered computer-generated DNA fragment sizes had accidently, and inappropriately, been compared to hand-measured DNA fragments. She telephoned Cellmark upon arriving in Danville and had the measurements done properly. She determined the frequency of DNA fragments common to both the defendant and the bed sheet was 1 in 300,000. After reviewing Boodee’s work and the case file, Foreman opined “the DNA from the bed sheet matches the DNA banding pattern that we found in Mr. Miles and that it is unlikely that that DNA was deposited by someone else.”

The State rested.

Jeff Stacker was the first defense witness. He is a cousin of Leon Mason, G.S.’s former husband. He testified he had been to G.S.’s house on several occasions in 1986 to visit Mason and met G.S. there. Stacker is also a friend of the defendant. He and the defendant visited Mason at Mason’s home several times during 1986. On cross-examination, he testified he and the defendant were then housed together in the same cell block at the Public Safety Building in Danville. Stacker has several convictions: theft and unlawful use of a weapon in Illinois, grand larceny in New Mexico, and robbery in Wyoming. He was awaiting sentencing in Vermilion County on armed robbery and aggravated battery convictions.

The defendant testified he had known Mason for several years and knew he was, at the time of trial, serving time in a Federal penitentiary. He last saw Mason in 1986, and testified he had been to Mason’s home several times in 1986. Mason introduced G.S. to him on one of the visits. The defendant testified his parents, seven brothers and sisters, 11 aunts and uncles, and numerous cousins live in Dan-ville, Illinois.

The defendant denied entering G.S.’s home on November 3, 1987, and raping her. He could not recall where he was on November 3, 1987. Defendant was sentenced to the penitentiary on November 10, 1987, and remained there. He learned he was a suspect in the case involving G.S. in July 1989, when an investigator visited him at the prison and sought to ask questions regarding the incident. The defendant testified he denied being in G.S.’s house.

On cross-examination, the defendant testified he was at Mason’s house in March 1986, and the last time he visited there was September 1986. While visiting Mason, the defendant and Stacker cleaned the house, but he denied ever going into the utility room. He claimed he did not know Mason was in Federal custody from March 18, 1986, to July 16, 1988, prior to sentencing to the Federal penitentiary. The defense then rested.

The State called Richard Carroll, a United States probation officer. He testified he prepared a presentence report for Mason in 1986. Mason was taken into custody on March 18, 1986, and has been in Federal custody since then.

The jury returned guilty verdicts and the trial court subsequently denied the defendant’s motion for post-trial relief. The court sentenced the defendant to 30 years’ imprisonment on count I (home invasion), 30 years’ imprisonment on count IV (aggravated criminal sexual assault), 30 years’ imprisonment on count X (armed robbery), and 30 years’ imprisonment on count XI (residential burglary), the sentences to run consecutively for a total of 120 years’ imprisonment. The court imposed an eight-year prison sentence for aggravated unlawful restraint, to run concurrently to the other sentences imposed.

On appeal, the defendant first contends the State failed to present sufficient evidence the techniques used by Cellmark produced a reliable result. Defendant argues the trial court erred in admitting evidence of a DNA match. We begin our analysis by noting the following facts. First, it was the defendant who requested DNA testing. Yet he failed to present an expert witness to challenge the testimony of the State’s experts. Additionally, the defendant’s fingerprints were found throughout G.S.’s home, most importantly at the point of entry, the "window on the porch. G.S. specifically testified she did not drink soda directly from two-liter bottles. Yet Danville police found a two-liter grape Crush soda bottle on a nightstand in G.S.’s bedroom. The defendant’s fingerprints were lifted from the bottle.

The defendant does not claim DNA testing fails to meet the standards of Frye v. United States (D.C. Cir. 1923), 293 F. 1013. In People v. Lipscomb (1991), 215 Ill. App. 3d 413, 432, this court stated:

“[T]he DNA identification or fingerprinting procedure *** is generally accepted within the particular scientific fields involved and is admissible. This includes the six-step RFLP [Restriction Fragment Length Polymorphism] procedure used in developing the autorads, the visual interpretation of these autorads, the manner of determining the bins, the development of frequencies, and [the] procedure whereby the individual frequencies are multiplied together to determine the ultimate frequency of the pattern.
Any question concerning the specific procedures used by the company or expert goes to the reliability of the evidence and is properly considered by the jury in determining what weight to give to this evidence. If it is shown that the procedures used give an unreliable result, then the court may find it necessary to exclude this evidence entirely.”

Foreman testified Cellmark follows the TWIGDAM (Technical Working Group — Interagency Working Group of DNA Methodology) guidelines, promulgated by the FBI. Defendant cites numerous cases from other States in which Cellmark’s testing procedures were found to be so unreliable the results were not admitted into evidence. Most of these cases reached this result after expert witnesses for the defense challenged the procedures. Cellmark, however, appears to be learning from past mistakes, as seen by the company’s adoption of a written protocol and adoption of the TWIGDAM standards. We are unpersuaded by the cases defendant cites.

When a case arrives at Cellmark, it is assigned to one person, who is responsible for performing tests and following testing procedures. Cellmark requires its scientists follow a written protocol in performing tests. Expiration dates ensure chemicals used in the processes are fresh. Boodee testified instruments and equipment are kept in working order. A second Cellmark employee witnesses all steps in the chain of custody as well as many test procedures. Once the autorads are developed, the molecular biologist presents them to a Ph.D. scientist for review. The Ph.D. scientist reviews the entire case file in interpreting the autorad. Two Ph.D. scientists separately review each case and each writes a report of findings. The reports are combined in the final document sent to the client. A laboratory supervisor reviews the report before it is released to the client.

Boodee testified he followed Cellmark’s protocol in performing DNA tests on the bed sheet and blood samples provided in this case. His work was reviewed by two Ph.D. scientists. Foreman testified the autorads Boodee produced in this case provided “nice quality autoradiographic results.”

After examining five separate autorads, Boodee and Foreman indicated the defendant’s DNA matched the DNA found in the semen on the bed sheet from G.S.’s house. Computer as well as hand measurements were made in declaring the match.

Boodee specifically stated evidence left at room temperature can be degraded by bacteria. The jury knew the bed sheet had been in an evidence locker in Danville, at room temperature, for two years before testing by Cellmark. Boodee testified the semen stain on the bed sheet did provide sufficient DNA for the tests performed. Foreman was forthcoming about the mistake made in measuring the DNA in which hand measurements were inappropriately compared to computer measurements. But she also testified she telephoned Cellmark and had proper comparisons made before trial.

The admission of expert testimony is within the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion. (People v. Eyler (1989), 133 Ill. 2d 173, 211, 549 N.E.2d 268, 285, cert, denied (1990), 498 U.S. 881, 112 L. Ed. 2d 174, 111 S. Ct. 215.) Expert testimony is admissible when the expert has knowledge or experience not common to a layman, and this knowledge or experience would aid the jury in determining the facts at issue. People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.

Expert testimony was admissible in this case because DNA identification is beyond the knowledge and experience of laymen. The evidence presented regarding the procedures used in this specific case did not indicate the results produced were clearly or inherently unreliable. The expert witnesses in this case were well-prepared and presented coherent testimony. Defense counsel vigorously cross-examined each witness not only as to general DNA testing procedures but also as to quality-control measures used by Cellmark and problems encountered in this case. We place particular emphasis on the testimony of the expert witnesses, their thorough cross-examination, the written protocol adopted by Cellmark, and the TWIGDAM standards. Given these factors, the trial court properly admitted the DNA match evidence.

The second issue on appeal is whether the trial court erred in admitting expert testimony that the statistical probability of a random match in the African-American community was 1 in 300,000. The general procedure for generating such statistical probabilities begins by comparing the DNA from the evidence, in this case the semen from the bed sheet, to the DNA in the suspect’s blood sample, to determine if there is a match. If so, then the suspect’s DNA is compared to information in Cellmark’s African-American data base to determine the probability of an African-American other than the defendant leaving the semen stain on the bed sheet. Foreman testified the probability was 1 in 300,000.

The data base for African-Americans at Cellmark is the result of DNA testing on 200 to 300 blood samples. The samples came from African-Americans in Detroit, Michigan. Defendant argues the use of the so-called “product rule,” which requires Cellmark to multiply “the frequency of occurrence of various [DNA] bands at various loci to produce some large figure representing a small probability of a random match,” creates a danger of producing misleading information. The defendant bases his argument on People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734.

The Harbold defendant was convicted of murder. At trial, experts testified the victim’s blood type was A while the defendant’s blood type was O. DNA tests were performed on Type O bloodstains found on various pieces of evidence. The appellate court reluctantly concluded the evidence was admissible, but questioned scientific acceptanee of the DNA identification process. However, the court concluded expert testimony “that ‘the chances of selecting any two people at random from the population and having them accidently have identical blood types in each one of these factors is less than one in 500, that is, what we call the probability of an accidental match is less than one in 500,’ ” was inadmissible because it was irrelevant, beyond the scope of expert opinion, and highly prejudicial. (Harbold, 124 Ill. App. 3d at 381, 464 N.E.2d at 748.) This court’s opinion in Lipscomb renders Harbold inapplicable.

The defendant in Lipscomb also relied on Harbold in challenging the admission of probability statistics. This court distinguished Harbold and found it inapplicable, holding the DNA identification procedure was admissible, including “the development of frequencies, and procedure whereby the individual frequencies are multiplied together to determine the ultimate frequency of the pattern.” (Lipscomb (1991), 215 Ill. App. 3d at 432.) Implicitly, the court held the process of generating probability statistics is an integral part of the DNA identification process. Because the DNA identification process meets the Frye test and is admissible, probability statistics operated thereby are admissible. The trial court did not err in admitting Foreman’s calculation that the chances of another African-American male leaving the semen stain found on the bed sheet in G.S.’s bedroom was 1 in 300,000.

In summary, the trial court did not err in admitting the DNA evidence. The standards established by Lipscomb were met in this case. Additionally, evidence of defendant’s guilt was overwhelming, even without the DNA evidence.

The third issue on appeal involves the effectiveness of trial counsel. The defendant claims trial counsel was ineffective because he did not present an expert witness to challenge testimony by Foreman and Boodee. A defendant seeking to show trial counsel’s performance was ineffective must first show “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) This requires the defendant show his trial counsel’s representation “fell below an objective standard of reasonableness.” (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The defendant has failed to make such a showing in this case. His attorney made proper, timely objections throughout the trial and vigorously cross-examined the State’s expert witnesses. Counsel’s performance did not fall below an objective standard of reasonableness; he did the best he could given the overwhelming evidence of his client’s guilt.

The second showing defendant must make pursuant to Strickland is prejudice; the defendant must show counsel’s performance was so deficient it prejudiced him or, “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) It is unlikely the result in this case would have been different even if defense experts had been presented and challenged Foreman and Boodee, given the fingerprint evidence and defendant’s lack of credibility. The defendant failed to show ineffective assistance of counsel as required by Strickland.

The defendant next contends Federal and State law require reversal of the sexual assault conviction because the jury instructions failed to specify a mental state. The defendant has waived this issue because he failed to object to the instructions given and failed to raise the issue in his post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

The fifth issue on appeal is whether the trial court erred in imposing extended-term sentences for aggravated unlawful restraint and residential burglary. The jury convicted the defendant of three Class X felonies: armed robbery, aggravated criminal sexual assault, and home invasion. The trial court sentenced the defendant to 30 years’ imprisonment for each of the Class X felonies. The jury convicted the defendant of residential burglary, a Class 1 felony. The statutory period of imprisonment for a Class 1 felony is 4 to 15 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(4).) The trial court, however, sentenced the defendant to 30 years’ imprisonment for residential burglary, though the court made no finding that defendant was eligible for an extended-term sentence for residential burglary. The jury also convicted the defendant of aggravated unlawful restraint, a Class 3 felony. The statutory period of imprisonment for a Class 3 felony is two to five years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(6).) The court sentenced the defendant to an extended term of eight years for aggravated unlawful restraint. The court concluded this was the only count on which the defendant was eligible for an extended term, “because you have been convicted of that same class or greater felony as proscribed [sic] by the statute.”

The statute permitting an extended-term sentence states: “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 ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-2(a).) The Illinois Supreme Court has held “the plain language of section 5 — 8—2(a) requires that, when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class.” Jordan, 103 Ill. 2d at 206, 469 N.E.2d at 575.

The defendant argues, and the State concedes, the trial court erred in imposing an extended-term sentence for aggravated unlawful restraint, because it was not the most serious offense for which defendant was convicted.

We therefore reverse the sentences imposed on the aggravated unlawful restraint and residential burglary convictions, and remand for resentencing.

The final issue is whether the trial court erred in imposing consecutive sentences for home invasion, armed robbery, and residential burglary. Section 5 — 8—4(b) of the Unified Code of Corrections (Code) states, in pertinent part:

“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence except as provided for in subsection (a) unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—4(a), (b).

The court entered separate judgments on aggravated unlawful restraint, armed robbery, and each residential burglary conviction, stating: “The Court in that regard makes that determination based upon the facts in the record, and also based upon the fact that these are separately findable, separately committed offenses; they are not all a part of the same act, and therefore, separate judgments as indicated are appropriate.” In deciding to impose consecutive rather than concurrent sentences, the court specifically stated it relied on section 5— 8 — 4(b) of the Code. The decision to rely on subsection (b) was “based upon [the defendant’s] prior record, and the facts and circumstances involved in this case.”

In considering the defendant’s extensive criminal record, the court did not include traffic and “fine only” offenses. The defendant also had convictions for the following offenses in the years specified: retail theft (1975, and twice in 1987), criminal damage to property (1976), battery (twice in 1978, and in 1982), burglary (1980), theft over (twice in 1980, and in 1982), theft (1982, and again in 1987), forgery (twice in 1982), and possession of a controlled substance and possession of a hypodermic needle (1989). On March 2, 1990, defendant had been sentenced to six years in the Illinois Department of Corrections on another matter, though the presentence report does not indicate the crime(s) for which defendant was sentenced.

The court, in this case, stated: “Your record before the Court indicates a constant and persistent pattern of violations of the law, noncompliance -with probation, and non-compliance with the law.” The court continued:

“[A]t this point I think you are a serious risk to the public. I think that the facts and circumstances, and the nature of the offense, and the history of your offenses, and your offenses in this case lead the Court to believe that a term, a consecutive term, and a long consecutive term in the penetentiary [sic] is necessary to protect the public from you. I think you have to be warehoused.”

On appeal, the defendant argues the trial court erred in imposing consecutive sentences for armed robbery, residential burglary, and home invasion because the trial court made no finding these offenses were not part of a single course of conduct. He also contends there was no change in the criminal objective, which was entering G.S.’s home to take her property.

Although the trial court specifically relied on subsection (b) and found the defendant should be warehoused, the defendant argues the court cannot circumvent the requirements of subsection (a) merely by finding the public deserves to be protected from him. The defendant concedes a consecutive sentence was proper for aggravated criminal sexual assault.

The defendant relies on People v. Davis (1986), 151 Ill. App. 3d 435, 502 N.E.2d 780. In Davis, the trial court imposed consecutive sentences for residential burglary, home invasion, and aggravated criminal sexual assault. The defendant argued the evidence showed one of his motives for entering the victim’s house was to commit a sexual assault and, thus, there was no substantial change in his objective with the offenses of home invasion and residential burglary. He argued there was no evidence to support the trial court’s conclusion he entered the victim’s home and then formed the intent to commit sexual assault. The Second District Appellate Court agreed. “It is equally possible under this evidence that defendant entered [the victim’s] home with the intent to commit both a theft and a sexual assault. We conclude the trial court erred in imposing consecutive sentences.” Davis, 151 Ill. App. 3d at 445, 502 N.E.2d at 787.

The only case which follows the Davis holding on consecutive sentencing is People v. Miller (1989), 193 Ill. App. 3d 918, 552 N.E.2d 988. One year later the same court, though a different division, limited Davis to its facts and called into question the opinion’s reliance on People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280. (People v. Abrams (1990), 205 Ill. App. 3d 295, 299-302, 562 N.E.2d 613, 615-17.) The Abrams court also concluded the Illinois Supreme Court implicitly rejected arguments similar to those made by the defendant in Davis in an earlier decision, People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819.

The trial court’s exercise of discretion in sentencing the defendant should not be disturbed on review in the absence of an abuse of discretion. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307; People v. Tigner (1990), 194 Ill. App. 3d 600, 609, 551 N.E.2d 304, 310.) The trial court in this case did not abuse its discretion. The court determined consecutive sentences were appropriate because the offenses (home invasion, armed robbery, and residential burglary) were separate offenses and because the public needed protection from the defendant. The record supports both conclusions.

When the defendant entered G.S.’s house, he first sought money. He threatened to rape her if she did not cooperate in withdrawing money from the Easy Answer machine. The defendant raped G.S. at knifepoint when they returned to her home, despite her cooperation. He then ransacked the house searching for more objects of value. He fell asleep while waiting for the bank to open and, when G.S. attempted to flee, he raped her again. The original objective, stealing money and jewelry from G.S.’s house, changed when the defendant forced her leave her home to withdraw money from her checking and savings accounts. The objective also changed when he sexually assaulted G.S. See generally People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 1165; People v. Simmons (1985), 138 Ill. App. 3d 492, 485 N.E.2d 1135.

Additionally, the record in this case, as well as defendant’s criminal background, support the conclusion consecutive sentences were necessary to protect the public. “[T]o hold that under these circumstances consecutive sentences are precluded would be contrary to the deterrent purpose of multiple sentencing, which is to discourage the commission of further offenses once an initial offense has been completed.” People v. Paino (1985), 137 Ill. App. 3d 645, 654, 484 N.E.2d 1106, 1112.

Affirmed in part; reversed and remanded in part.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN A. DUNKER, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0003
    Opinion filed August 6, 1991.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Stephen A. Dunker was convicted of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(3)) following a jury trial in Macon County, Illinois, on November 14, 1990. Defendant was sentenced on December 6, 1990, to a term of probation for 18 months conditioned on a term of imprisonment of 30 days in the Macon County jail. Defendant appeals, contending the State failed to prove him guilty beyond a reasonable doubt. We affirm.

Defendant’s son, Brian, was in the first grade at Brush College School (Brush) in Decatur, Illinois, at the time of the incident. The complainant, Debbie Livingston, was Brian’s teacher at Brush. In February 1990, Brian was transferred into Livingston’s class from the other first-grade class at Brush because of a conflict between defendant and his wife and Brian’s former teacher. At that time, Brian was academically behind the rest of the students in the first-grade class. Accordingly, Livingston began individualized lesson plans for Brian. On May 25, 1990, approximately two weeks before the end of the school year, Livingston determined that, although Brian had made significant progress in catching up with his classmates, he was still approximately two levels behind the other students in reading. Brian had completed the level IV textbook but had not passed the tests which would enable him to advance to level V. If he completed the level IV tests, he would then only be two levels behind the rest of the students for the next school year.

Livingston testified on May 25, 1990, she walked Brian to the school parking lot to speak with his father. Livingston stated she wished to ask defendant for permission to keep Brian after school for 15 or 20 minutes each day to enable him to complete the level IV tests. They reached defendant’s car and Brian climbed into the backseat. Livingston stood near the driver’s side door, facing defendant at a slight angle. Livingston testified she began talking to defendant about how Brian needed to complete these tests in order to have the results placed in his permanent file so he would not have to repeat the entire fourth-level reader the next year. Livingston sought permission to keep Brian after school to achieve this goal. According to Livingston, defendant refused her permission to keep Brian after school because he had to pick Brian and his sister up at school and then go pick up his wife. Livingston suggested defendant pick his wife up first and then return to the school and pick the children up. This would give Livingston the time she sought to work with Brian. Defendant rejected this suggestion, stating that it would unnecessarily punish Brian’s sister by causing her to stay after school also.

Livingston testified defendant became angry and began yelling at her. According to Livingston, defendant also began poking his finger in her face saying he was sick and tired of having to do the teachers’ jobs, and that he then poked her in the chest. Defendant was also using profanity and commenting on other school employees. Livingston testified defendant poked her with his finger in her sternum, approximately four inches below the Adam’s apple. Thereafter, Livingston testified defendant proceeded to grab the papers she held in her hand and fling them across the seat of his car. These papers were Brian’s tests that she had planned to show defendant to explain why Brian needed to stay after school. Livingston gestured toward the papers, indicating to defendant that she needed them back because the tests had to be given by the teacher and then placed in Brian’s permanent file. She testified defendant threatened to run her over if she did not move away from the car. Defendant then pulled away, causing Livingston to have to jump back to avoid being struck by the car. Livingston testified she began walking back toward the school when she heard another parent, who was also in the parking lot, yell to her to stay away from defendant.

Livingston testified she went into the principal’s office and explained what happened. The principal called the school superintendent, who suggested Livingston call her union representative. Livingston also called the police and reported the incident. Finally, Livingston testified, as to the amount of pressure applied by the defendant when he poked her in the chest, it was “a pretty vigorous poke, enough for me to back away, enough for me to know, you know, there was a spot there, and, you know, that’s the exact location of where it was.”

On cross-examination, defense counsel posed the following question: “You were not insulted or provoked into some sort of fight or anything of that nature?” Livingston replied she was not. Livingston also denied defense counsel’s implication that she did not become insulted or provoked until she called her union representative, who told her to report the incident to the police. Last, Livingston testified she left the parking lot crying, was shocked at the incident, and felt it was uncalled for since she had been working very hard with Brian.

Cherie Kupish testified she witnessed this incident between defendant and Livingston. She explained she was present in the parking lot adjacent to Brush to pick up her daughter, who was in the fifth grade at Brush. Kupish’s van was parked diagonally from defendant’s car with her front bumper being about three feet from defendant’s rear bumper. Although there was a car parked in front of her van, it did not block her view of defendant’s car because of the size difference between that car and her van. Kupish testified she could hear defendant yelling at Livingston and saw him thrust his finger in her face. She also testified she saw defendant poke Livingston in the chest approximately five or six times. Kupish stated Livingston then began walking back toward the school and that she was in tears.

Defendant’s eight-year-old daughter, Sarah, and seven-year-old son, Brian, testified on his behalf. They both testified Livingston was shoving the papers into defendant’s face, causing them to touch his nose and that defendant never poked Livingston in the face or chest. Sarah testified defendant carefully placed the papers on the seat next to him, while Brian testified defendant merely took the papers away.

Defendant testified he went to pick his children up from school on May 25, 1990, at approximately 3:05 p.m. He stated he also had to pick up his wife, who got out of her school at 3 p.m. but would first pick the children up. Defendant testified Livingston approached his car and stood right outside the driver’s window. According to defendant, Livingston began saying Brian was way behind on his schoolwork and needed to do the tests. Defendant testified Livingston shoved the papers in his face. Defendant explained he was having trouble understanding what Livingston was saying to him and he questioned her waiting until the school year was almost over to tell him Brian was behind in his schoolwork. Defendant testified Livingston said she had been telling him all along Brian was behind in his work and needed to do these tests. Defendant stated Livingston continued to shake the papers in his face, which made him think she meant for him to take them. He grabbed the papers from her and laid them on the seat next to him. Defendant testified Livingston went berserk and leaned over, reaching into the car with her left hand to grab the papers. However, she could not reach them and defendant said he would return the papers the following day. Defendant testified he told Livingston he did not have time to argue with her because he had to go pick his wife up. Defendant asked Livingston to get away from the car so he could leave. Defendant testified he did not touch Livingston in any manner but that he may have grabbed the papers a little too fast. Defendant proceeded to pick up his wife and then they, along with Brian, went back to the school to talk to the principal about the situation and return the papers.

During rebuttal, Kupish testified Livingston never reached into the defendant’s car, nor did she wave or shake the papers in defendant’s face. Rather, Kupish stated Livingston held the papers and defendant grabbed them from her. Kupish testified that, except when defendant grabbed the papers from Livingston, they made no other contact with defendant’s body.

Livingston testified, on rebuttal, that she did not reach into defendant’s car to try to get the papers back from him. She stated she may have touched the windowsill of the car but she denied shaking the papers in defendant’s face or touching his nose with them.

The jury returned a guilty verdict, and defendant was sentenced to 18 months’ probation conditioned upon a 30-day term of imprisonment in the county jail. Defendant filed a post-trial motion on December 6, 1990, which was denied. Defendant then filed a notice of appeal on January 2,1991.

Defendant contends his conviction must be reversed because the State failed to prove beyond a reasonable doubt that Livingston was insulted or provoked when he poked her with his finger. The State responds the evidence was sufficient for the jury to find Livingston was insulted or provoked by defendant’s poking.

Section 12 — 4(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(3)) provides:

“(b) A person who, in committing a battery, commits aggravated battery if he either:

* * *

(3) Knows the individual harmed to be a teacher or other person employed in any school and such teacher or other employee is upon the grounds of a school or grounds adjacent thereto, or is in any part of a building used for school purposes.”

A person commits a battery when he either intentionally or knowingly, and without legal justification, makes physical contact of an insulting or provoking nature with an individual. People v. Wilkinson (1990), 194 Ill. App. 3d 660, 664, 551 N.E.2d 327, 329; Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a).

The credibility of witnesses and the weight to be given their testimony are matters for the jury to determine and, unless its determination is manifestly against the weight of the evidence, it will not be disturbed on appeal. (Moran v. Lala (1989), 179 Ill. App. 3d 771, 534 N.E.2d 1319.) The relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Defendant contends Livingston testified she was not insulted or provoked by the contact with defendant’s finger. Livingston did not testify that she was not insulted or provoked, but rather testified she was not provoked or insulted “into some sort of fight.” Kupish testified Livingston left the parking lot in tears. Livingston testified she was crying, was shocked by defendant’s behavior, and believed it was uncalled for.

As the trial court noted at the hearing on defendant’s post-trial motion, the issue raised by defendant involves a question of fact and credibility of witnesses which was passed upon by the jury. There was sufficient evidence for the jury to conclude Livingston was insulted or provoked by defendant’s touching.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

GREEN and KNECHT, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD E. THOMAS, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0530
    Opinion filed August 6, 1991.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Robinson, State’s Attorney, of Sullivan (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On May 8, 1990, following a jury trial in the circuit court of Moultrie County, defendant Ronald E. Thomas was convicted of driving under the influence of alcohol. On the day prior to trial, defendant entered a plea of guilty to possession of cannabis. Defendant was subsequently sentenced to concurrent terms of 18 months’ probation, with one of the conditions of probation being that he serve 40 days in the county jail. Defendant was ordered to serve 10 days of the 40-day sentence at the beginning of his probation term, and the remaining 30 days could be waived by the probation department if defendant successfully completed a residential substance-abuse treatment program.

Defendant maintains on appeal that his sentence is void, because the trial court gave the probation department discretion to determine whether he would be required to serve 30 days in jail, upon successful completion of a drug-abuse program, as one of the conditions of his probation. We vacate the sentence and remand for resentencing.

Initially, defendant acknowledges that, with respect to the sentence imposed on the charge of unlawful possession of cannabis, he did not file a motion to withdraw his plea or a motion to reconsider his sentence as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) and the Illinois Supreme Court’s interpretation of that rule in People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334. He further recognizes that he did not object to the sentence for driving under the influence of alcohol at the time it was imposed. He argues, nevertheless, that he has not waived the issue for purposes of appeal, because the sentence was void, and a void judgment may be attacked at any time. People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955.

The determination of the terms and conditions of probation is a judicial function (People v. Brouhard (1972), 53 Ill. 2d 109, 290 N.E.2d 206; People v. Jones (1989), 185 Ill. App. 3d 208, 218, 541 N.E.2d 161, 167), and courts have no power to delegate a judicial function unless clearly authorized by law to do so. (Smallwood v. Soutter (1955), 5 Ill. App. 2d 303, 309, 125 N.E.2d 679, 683.) Since there is no authorization to delegate the decision to incarcerate a defendant, that part of defendant’s sentence is void and must be vacated. The defendant was not required to raise the issue earlier.

In People v. Love (1980), 83 Ill. App. 3d 948, 404 N.E.2d 1085, the trial court sentenced the defendant to one year’s probation. A condition of the probation was that defendant make restitution to the victim for the amount of medical expenses not covered by insurance. The amount of such restitution was to be computed by the probation department. On appeal, the court reversed and remanded for resentencing, stating that the trial court erred in delegating to the probation department the determination of the amount of restitution.

Here, as in Love, the probation department was solely responsible for determining an integral part of defendant’s sentence, i.e., whether he would spend the final 30 days in prison if he did not successfully complete the program. Although it is clear the court intended to remit the remaining 30 days’ imprisonment upon defendant’s successful completion of the program, it left to the probation department the decision as to whether defendant could be deemed to have been successful. This was not a function that could properly be delegated when the question of further incarceration is at stake.

The State argues Jones and People v. Williams (1981), 96 Ill. App. 3d 588, 421 N.E.2d 1039, to support the trial court’s decision. In Jones, the defendant was convicted of unlawful delivery of cocaine and was ordered to undergo a drug and alcohol evaluation and to comply with any treatment recommended in the evaluation by the diagnostic center. The appellate court held there was no improper delegation of judicial authority, since the terms were set by the trial court. The Jones court noted the trial court did not delegate to the diagnostic center the determination of whether defendant should be evaluated or should comply with any recommended treatment. The only item left to the determination of the diagnostic center was an assessment of what, if any, treatment would benefit defendant. Regardless of whether we agree that the delegation of authority to the diagnostic center in Jones was proper, the degree of authority delegated here is much greater than that in Jones.

In Williams, the defendant was ordered to complete “80 hours of public service work under the supervision” of the probation department. (Williams, 96 Ill. App. 3d at 589, 421 N.E.2d at 1040.) This court determined that a trial court could properly rely on the probation department to supervise the work. The court noted it would place an “unreasonable burden” upon judges to require them to keep themselves sufficiently advised of the details of the public service work to make a determination as to when, where, and how the work was to be performed, and what the nature of the work should be. The court found the legislature to have implied delegation of this responsibility to probation officers. Williams, 96 Ill. App. 3d at 590-91, 421 N.E.2d at 1041.

In both Jones and Williams, the diagnostic center and probation department, respectively, merely supervised the defendants’ probation and reported to the court whether the defendants were successful. Here, the court purported to give the probation department the power to waive the need for the defendant to serve the final 30 days in prison, if, in the opinion of the probation officer, he had successfully completed the program. Had the court required a hearing to determine whether defendant had successfully completed the program, so that the 30 days of additional incarceration could have been remitted, the analogy to Jones and Williams would have been appropriate.

Accordingly, we vacate defendant’s sentence and remand to the circuit court for resentencing.

Sentence vacated and remanded.

LUND, P.J., and McCULLOUGH, J., concur.


text:
    DONNA SPANN, Plaintiff-Appellant, v. SPRINGFIELD CLINIC, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0121
    Opinion filed August 6, 1991.

      R.W. Deffenbaugh, of Deffenbaugh, Loewenstein, Hagan, Oehlert & Smith, P.C., of Springfield, for appellant.
    Daniel Maher, of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, and Mark E. Furlane and Alan S. King, both of Gardner, Carton & Douglas, of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On May 22, 1990, plaintiff Donna Spann filed a complaint in the circuit court of Sangamon County against defendant Springfield Clinic, a partnership, contending defendant improperly discharged her from her employment with defendant. She sought reinstatement and money damages. On December 6, 1990, plaintiff filed an amended three-count complaint against defendant. Count I alleged defendant had terminated plaintiff’s employment without affording her grievance-procedure rights provided for in an employees’ handbook. Count II alleged defendant breached a duty of good faith owed plaintiff pursuant to the employment contract between the parties. Count III contended defendant inflicted intentional emotional harm on plaintiff. On January 7, 1991, defendant filed a motion pursuant to section 2— 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) maintaining a disclaimer provision in the handbook negated any right of plaintiff to a grievance procedure and that counts' II and III did not set forth causes of action. On January 22, 1991, the circuit court allowed defendant’s motion dismissing the cause with prejudice.

On appeal, we need not consider the propriety of the dismissal of the count alleging intentional infliction of emotional injuries, as plaintiff has cited no error in that regard. The substance of her argument on appeal is that the law should allow redress for a faithful at-will employee who, as she alleges, is discharged with no reason given and apparently because of mistake. She contends this is particularly true when the employee has also been given a handbook defining employee rights to a grievance procedure which was not followed. However, we hold that neither statutory law nor judicial precedent has extended the rights of an at-will employee as plaintiff asserts, and the employee handbook set forth by the pleadings makes clear no grievance rights were granted to plaintiff by that handbook. Accordingly, we affirm.

Plaintiff’s amended complaint alleged a great deal of factual information and attached to it were various documents and affidavits. The common substance of counts I and II were allegations that (1) plaintiff was hired on July 29, 1985, and had served as a faithful employee with good evaluations until March 28, 1990, when she was called into conference with defendant’s administrator and co-employee Jackie Wolf; (2) those employees were then informed of a letter by Julie Smith asserting that the confidentiality concerning her pregnancy had been violated by someone; (3) Wolf admitted she had revealed the information to plaintiff and others; (4) plaintiff had told Smith of Wolf’s telling others of Smith’s pregnancy and Smith had written to the administrator telling him that Wolf had told plaintiff she had obtained confidential information from clinic files concerning Smith’s pregnancy; (5) a counseling memorandum had stated a determination had been made that plaintiff saw Smith getting a sonogram and began seeking to find out why from confidential information; (6) the foregoing matter in the memo was untrue; and (7) plaintiff was fired and was told she was fired for teasing someone.

Both counts also stated (1) before discharge, plaintiff had no benefit of the “Formal Problem Solving Clearance Procedure” set forth in the handbook; (2) plaintiff signed an acknowledgment of receipt of the handbook but did not understand she could be fired for allegations which were untrue; and (3) defendant violated the terms of the handbook. Count II also asserted (1) defendant had a duty of using good faith in the investigation and determination of the charges against plaintiff; (2) defendant had greater power than did plaintiff and that power was unchecked; and (3) the provisions of the handbook for employee termination proceedings should be followed.

Plaintiff’s theory that she had certain procedural rights arising from an employee handbook she had been given by defendant arises from the decision in Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314. There the court held the general “employment-at-will rule,” which allowed either party in an employment-at-will relationship to terminate the employment for any reason, was only a presumption which could be overcome by a showing that the parties intended otherwise. The supreme court concluded that traditional requirements for contract formation governed whether any employee handbook created an enforceable contract.

The Duldulao court set forth the following principles to determine whether an employee handbook creates an employment contract:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

The court concluded that, there, all three conditions were met, and the employer was contractually obligated to provide the grievance procedure contained in its handbook before it would discharge an employee. The court noted that, there, the “handbook contain[ed] no disclaimers to negate the promises made.” Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 319.

The Duldulao handbook provided that, after completion of a probationary period, an employee “could be terminated only with ‘proper notice and investigation’ ” and three warning notices before discharge. (Duldulao, 115 Ill. 2d at 486, 505 N.E.2d at 316.) The court reasoned that, accordingly, the employee would likely assume that discharge would not occur without warnings unless serious misconduct was involved. The court also noted that no disclaimers were involved and the handbook expressly indicated it was “ ‘designed to clarify [the employees’] rights and duties as employees.’ ” (Emphasis in original.) Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 319.

After Duldulao, this court decided Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 559 N.E.2d 1119, and Rudd v. Danville Metal Stamping Co. (1990), 193 Ill. App. 3d 1009, 550 N.E.2d 674. In Anders we upheld a summary judgment determining that an employee handbook did not bind an employer to following a particular procedure before discharging an otherwise at-will employee. There, unlike in Duldulao, the handbook contained various disclaimers indicating the handbook was not intended to bind the employer. (Anders, 201 Ill. App. 3d at 1096, 559 N.E.2d at 1123.) In Rudd we upheld the dismissal of a complaint by an employee seeking relief from a discharge relying upon a handbook. This court concluded the handbook was not stated in terms creating a contract between the employer and the employee. As we will explain, we find the handbook in this case similar to that in Anders and Rudd and materially different from that in Duldulao.

The parties do not dispute that the terms of the handbook were incorporated in the pleadings before the circuit court when it ruled. In addition to general statements of the employer’s desire to be a good employer and to maintain good employee relations, the portion of the handbook upon which plaintiff relies states:

“Problems, Complaints, and Grievances
Any employee who has a problem, complaint, or grievance should discuss it first with the department supervisor. If satisfaction is not obtained at that level the Personnel Director should be consulted.
Any employee may see either the Personnel Director or the Administrator at any time to discuss a problem.
There is also a formal Problem Clearance Procedure which provides a method for hearing employee concerns and resolving them. The Personnel Director will explain this procedure and assist the employee should it become necessary.”

The handbook also states:

“Employees who are hired on this basis receive the full program of benefits offered by the Clinic upon the successful completion of the 90 day probationary period.”

And, finally, the handbook provides: “Successful completion of the probationary period will give rise to eligibility for participation in certain Clinic benefits.” (Emphasis added.) Among the benefits listed are the terms “problems,” “complaints,” and “grievances.”

The foregoing provisions are substantially different than those in Duldulao — which permitted termination only after “notice,” “warning,” and “investigation” and spoke of employees’ “rights” rather than “benefits.” (Duldulao, 115 Ill. 2d at 490-91, 505 N.E.2d at 318-19.) More importantly, the handbook in Duldulao had no disclaimers. Here, the handbook stated:

“This handbook is intended to be your guide to the operations of Springfield Clinic. However, you should not consider it or any other personnel documents which may be posted or distributed from time to time as a contract of employment.
* * *
We adhere to the principles of individual achievement, effort and freedom of choice. Therefore, neither you nor Springfield Clinic is bound by a contract of employment for a definite period and the rights of either party to terminate the employment relationship are not limited by a contractual commitment.”

In addition, the record before the trial court showed a signed receipt by plaintiff of her copy of the handbook, which stated:

“I hereby acknowledge receipt of a copy of the Springfield Clinic Employee Handbook. I understand that this handbook does not constitute a contract of employment, that neither I nor Springfield Clinic is bound to an employment contract or a commitment to employment for a definite period of time, and that the rights of either party to terminate the employment relationship are not limited.”

The trial court ruled that plaintiff failed to establish the first principle required by Duldulao in order for the handbook to become a contract. We agree. The “policy statement” of the handbook does not contain “a promise clear enough that an employee would reasonably believe that an offer has been made.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) Rather, as in Anders, the handbook contains a clear statement that the rights of neither the employer nor the employee to terminate the employment relationship are limited by contract. Also, as we have indicated, even absent any disclaimer, the “benefits” in regard to grievances granted to employees by the handbook are not definite or stated to be rights. Moreover, here, plaintiff has signed an acknowledgement of the existence of defendant’s disclaimer of intent to create a contract.

Plaintiff strongly urges us to adopt a rule of public policy which would prohibit an employer from discharging a faithful at-will employee without giving a reason and through mistake, as she maintains she has alleged here. Plaintiff asserts that even if the handbook was insufficient to create a binding contract, it creates an atmosphere in which the employee places a trust in the employer, and which she contends was violated here. She relies on language in Duldulao and cases cited therein which state that the status of at-will employment is not immune from restriction. As did the Duldulao opinion, she relies in particular on Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622. However, the restriction upon the at-will status to which those opinions refer is the restriction placed upon the at-will status by a clearly defined contract contained in an employee handbook.

Plaintiff also cites Cleary v. American Airlines, Inc. (1980), 111 Cal. App. 3d 443, 168 Cal. Rptr. 722, and Coats v. General Motors Corp. (1934), 3 Cal. App. 2d 340, 39 P.2d 838, which set forth a rule requiring an employer to act in good faith in discharging an at-will employee. However, as late as 1985 in ruling upon the grounds for a recovery for retaliatory discharge, the supreme court stated, “The common law doctrine that an employer may discharge an employee-at-will for any reason or for no reason is still the law in Illinois, except for when the discharge violates a clearly mandated public policy.” (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354, 1356.) Unquestionably, the conduct with which defendant is charged here does not come within the public policy exception described in Barr and originally in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353. The violations of public policy described in those cases arose from discharges for exercise of such rights as to file workers’ compensation claims (Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353) or to report freely violations of law. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) In Harrison v. Sears, Roebuck & Co. (1989), 189 Ill. App. 3d 980, 546 N.E.2d 248, this court held that an employer owed no duty of good faith in discharging an at-will employee.

Plaintiff relies upon Duldulao as setting the stage for acceptance of a rule requiring good faith in the discharge of an at-will employee. We see no intent in Duldulao to modify the clear strong language of Barr which we have quoted. Accordingly, we conclude that even if we favored creation of such a good-faith rule, we should await the recognition of such a rule by the Illinois Supreme Court or the General Assembly.

We affirm for the reasons stated.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OZZIE PICKETT, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0099
    Opinion filed August 6, 1991.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Livingston County, defendant was found guilty of the unlawful possession of a weapon by a person in the custody of the Illinois Department of Corrections (DOC) (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(b)). Defendant was sentenced to a term of imprisonment of seven years to be served consecutive to the sentence he was serving at the time of the instant offense (Cook County case Nos. 82 — 11415, 82 — 11416). On appeal, the only issue raised is whether defendant was denied the effective assistanee of counsel when defense attorney conceded guilt during closing argument.

In an attempt to convince the jury that the defendant needed to possess the weapon in order to protect himself while in prison, defense counsel was bluntly honest with the jury. During opening argument, defense counsel stated defendant did not intend to deny he had a dagger-like instrument, but depending on the evidence, a defense of necessity might be available to defendant. Defense counsel informed the jury that, in the event no instruction on necessity was given to the jury, it should understand the trial court ruled such a defense was not available under the facts of the case.

In cross-examining the State’s witnesses, defense counsel attempted to educe testimony of the dangerous nature of Pontiac Correctional Center, and the fact many inmates are armed. Defendant, after admitting he was found in possession of the weapon, testified he feared for his life. He further testified, however, that he would not attack or bother another inmate who is not armed, but he could not speak for some other inmates. While it is possible the situation might be better if no one carried a weapon, defendant testified he would rather carry one. On appeal, defendant admits testimony was not elicited which would advance a necessity defense or aid the defendant’s cause. See People v. Newbolds (1990), 204 Ill. App. 3d 952, 562 N.E.2d 1051; People v. Govan (1988), 169 Ill. App. 3d 329, 523 N.E.2d 581.

During closing argument, defense counsel advised the jury that the trial court had determined there was insufficient evidence to warrant an instruction on the defense of necessity. Defense counsel also admitted the State had proved the elements of the offense and, “the law says you should find him guilty. There is no question about that.” Nevertheless, defense counsel argued that a finding of guilty in this case merely condones the continued mismanagement of the prison by DOC and that a message demanding a change should be sent.

In Govan, cited earlier, this court rejected an ineffective assistance of counsel argument where defense counsel refused to make final arguments after the trial court rejected necessity as a defense. In Govan, there was no need to consider whether the failure to give a closing argument was conduct which fell below an objective level of reasonableness since defendant suffered no prejudice, having admitted all the elements of this strict liability offense.

Defendant relies on People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, wherein an accused murderer’s defense counsel, in an effort to avoid a death penalty, admitted defendant’s guilt in opening statement, failed to advance any theory of defense, and attempted to establish on cross-examination that defendant was compelled to kill the victims even though compulsion was not a legal defense to the charged offense. After noting that, in those cases where defense counsel advised defendant to admit guilt, the record must demonstrate the defendant’s knowing consent to that strategy was communicated outside the presence of the jury, consistent with Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the Hattery court decided the action of defense counsel did not subject the prosecution’s case to meaningful adversarial testing as required by the sixth amendment (U.S. Const., amend. VI) and United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039.

Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Cronie were decided by the United States Supreme Court on May 14, 1984. Strickland was relied on by this court in Govan. However, Strickland and Govan do not involve trials wherein defense counsel in effect pleaded his client guilty and asked for the jury to be merciful. In Strickland, the United States Supreme Court set out the tests for determining whether counsel’s performance was ineffective when a true adversarial criminal test has been conducted and demonstrable errors by defense counsel are claimed to have occurred. However, Cronie points out that there is a presumptive violation of the sixth amendment guarantee if no assistance is provided to defendant for his defense or if the process loses its character as a confrontation between adversaries.

In this case, as in Hattery, defense counsel unequivocally conceded defendant’s guilt. (Cf. People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290.) However, Hattery is also distinguishable from the case at bar. In Hattery, defense counsel attempted to present a defense of compulsion, even though compulsion was not available as a defense therein. Here, necessity was available as a defense if the evidence supported that theory. Defense counsel did not know until after the trial court heard the evidence and ruled that no instruction on necessity would be given. Trial counsel artfully explained to the jurors that defendant believed he had a defense which the court would not let them consider. This could well have enlisted the sympathy of the jurors to the defendant’s side. The fact it did not does not render what defense counsel did ineffective assistance.

In order for the defense of necessity to be available at all, defendant must admit he committed the offense since necessity merely justifies an otherwise criminal act. (See Ill. Rev. Stat. 1989, ch. 38, par. 7 — 13.) On appeal, defendant does not argue it was ineffective assistance of counsel for defense counsel to attempt to present a necessity defense. Having admitted the offense and the trial court having denied the availability of the necessity defense, defendant is placed in what can be characterized as a virtual no-win situation, and defense counsel attempted to save defendant as best he could by resorting to a public policy argument.

In this case, there was a true adversarial relationship throughout trial and there was no ineffective assistance of counsel, even under the Strickland standard. For if defendant admitted guilt in order to argue the availability of necessity as a defense, the defense counsel’s admitting defendant’s guilt in closing argument could not have affected the outcome of the trial, especially in light of the fact that defendant does not argue on appeal that the trial court incorrectly ruled on the availability of the necessity defense.

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

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD A. THARP, JR., Defendant-Appellant.
    Fourth District
    No. 4 — 90—0890
    Opinion filed August 6, 1991.

      Jack C. Vieley, of Peoria, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On June 29, 1990, pursuant to a plea agreement, defendant Donald A. Tharp, Jr., entered a plea of guilty to two counts of theft over $300 in the McLean County circuit court. (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1.) Defendant owned a used car lot in Bloomington, Illinois, and the charges stemmed from his taking cars on consignment, selling them, and failing to pay the money over to the owners of the vehicles.

A sentencing hearing was held on August 15, 1990, and, at the conclusion of the hearing, the trial court sentenced defendant to two concurrent terms of probation for a period of 30 months and ordered him to serve 90 days in the McLean County jail, to be served on weekends. Defendant was also to serve 300 hours of community service and pay restitution to the victims up to the amount of $13,463.14. The court ordered the restitution be paid in full no later than May 1, 1992, with the payments to be structured on a monthly basis through the probation office.

On September 11, 1990, defendant filed a motion asking the trial court to reconsider the restitution portion of his sentence, alleging the probation office had set the monthly payments at $670 per month and defendant’s income was insufficient to permit him to make these payments. Defendant also alleged in his motion that he was under an order of restitution stemming from similar charges in Tazewell County which required him to pay $358 per month (total restitution of $21,473) over a five-year period. In his motion, defendant stated his average monthly net income from employment as a car salesman was $1,150 and he had monthly expenses of $1,157.

A hearing was held on defendant’s motion on December 21, 1990. At this hearing, defendant testified his average monthly net income from his place of employment was $913.98. He further testified his monthly expenses had been reduced to a total of $1,005. He testified that because his living expenses exceeded his income, he was unable to pay the required restitution payments either in McLean or Tazewell County. Upon questioning by his counsel, defendant testified he desired to make restitution as ordered by the court, but that he wished the trial court to reduce his monthly payments.

In cross-examination of defendant, the State raised questions concerning his ownership of a car newer than the one he said he owned at the time of the August 15, 1990, sentencing hearing. Defendant also admitted under cross-examination that he was permitted to use a demonstrator car from his place of employment, with a mileage limitation of 100 miles per week. Defendant testified further that he was entitled to commissions for selling cars, and that his employer was planning an expansion of the business, which he expected would eventually increase his income.

Defendant testified since the Tazewell County restitution order was entered on September 4, 1990, he had paid approximately $150 to that county in restitution. He stated he had paid approximately $200 to McLean County since entry of its restitution order on August 15,1990.

In response to questioning by the trial court, defendant stated that he worked from 8:30 a.m. to 7 p.m. Monday through Friday and eight hours on Saturday. He testified he had no objection to getting a second job to increase his income, but that he did not know what nighttime jobs were available, he needed to be “fairly fresh” to sell cars, and he felt he could not look for a second job until he had completed his weekend jail sentence.

The trial court expressed some displeasure with the fact defendant had only paid $200 in restitution to McLean County in the four months since the sentencing order was entered. The trial judge also suggested to defendant that he should not have paid anything to Tazewell County, since the McLean County restitution order was entered prior to the order in Tazewell County.

Defense counsel requested that the trial court reduce its restitution order to require defendant to pay 10% of his net income over a five-year period. Counsel based his request on two cases decided by the appellate court: People v. Knowles (1980), 92 Ill. App. 3d 537, 414 N.E.2d 1322, and People v. Rupert (1986), 148 Ill. App. 3d 27, 499 N.E.2d 93. The State objected to this suggestion, arguing such a change would amount to a reduction of the restitution ordered. The State suggested to the trial court that it would be appropriate to extend the period of time within which defendant must pay the restitution, in order to reduce his monthly payments.

In its closing remarks, the trial court stated it believed defendant’s testimony concerning his income was “inaccurate,” and suggested that defendant’s wish to have his restitution reduced was “offensive to a sense of justice,” considering that defendant had admitted stealing from his victims.

The trial court entered an order modifying the August 15, 1990, restitution order, requiring defendant to pay the total restitution over a period of 59 months at a rate of $225 per month. Defendant appeals from this order. We affirm.

Section 5 — 5—6 of the Unified Code of Corrections provides, in pertinent part:

“[T]he court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court as hereinafter set forth:
(a) At the sentence hearing, the court shall determine whether the property may be restored in kind to the possession of the owner or the person entitled to possession thereof; or whether the defendant is possessed of sufficient skill to repair and restore property damaged; or whether the defendant should be required to make restitution in cash, for out-of-pocket
expenses, damages, losses, or injuries found to have been proximately caused by the conduct of the defendant * * *.
* * *
(f) Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—6(a), (f).

The State argues this appeal should be dismissed because defendant did not file a motion in the trial court to withdraw his guilty plea and vacate the judgment pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The State cites People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254, in support of its contention. However, the State’s reliance on Stacey is misplaced. The holding in Stacey was that even if a defendant wished to appeal only his sentence entered upon a plea of guilty, and not the guilty plea itself, he must first comply with the requirements of Supreme Court Rule 604(d) and file a motion in the trial court asking that he be allowed to withdraw his guilty plea. This holding was subsequently modified by our supreme court in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218. Wilk is controlling here. Wilk held a defendant who wishes to appeal only his sentence and who, prior to appeal, files a motion in the trial court to reconsider the sentence, may appeal the trial court’s ruling on his motion without first filing a motion under Rule 604(d) to withdraw his guilty plea. Thus, the defendant in the instant case is not precluded from filing this appeal.

The State also argues the defendant should be estopped from challenging the restitution order on appeal because he had agreed as part of his plea agreement that he would pay restitution. However, we need not decide this issue, as it is not clear from the record in this case that defendant’s agreement to pay restitution was, in fact, a condition of his plea agreement. The record contains the trial court’s written judgment upon defendant’s plea of guilty, but it does not state defendant agreed to pay restitution. In fact, the written judgment simply indicates defendant pleaded guilty to the two counts of theft without a plea agreement. The State represented to the trial court at the beginning of the sentencing hearing that part of the agreement between defendant and the State was that defendant would pay full restitution and the State would make no recommendation as to sentence. Defense counsel did not object to those statements and, in any event, defendant himself did agree to pay restitution. However, the transcript of the hearing on defendant’s entry of his guilty plea is not a part of the record on appeal. We are, therefore, reluctant to find that defendant agreed to pay restitution as a part of his plea agreement.

The State next argues defendant has waived any contention of error as to the restitution order by virtue of his testimony at the sentencing hearing and at the hearing on his motion to reconsider, in which he stated his willingness to pay full restitution to the victims in the amount of $13,463.14. We agree.

A defendant cannot invite an action by the trial court and then be heard to complain about it on appeal. (People v. Heard (1947), 396 Ill. 215, 219-20, 71 N.E.2d 321, 323 (and cases cited therein); People v. Miller (1983), 120 Ill. App. 3d 495, 457 N.E.2d 1373; People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438; People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367, cert, denied (1989), 489 U.S. 1085, 103 L. Ed. 2d 848, 109 S. Ct. 1544.) Here, the defendant testified repeatedly to his desire to make full restitution to his victims, and he assured the trial court he would do whatever it took to pay the restitution. Now he is asking us, in effect, to reduce the amount of the restitution he agreed to pay.

By stating his willingness to pay restitution, and by urging the trial court to sentence him to probation and to order him to pay restitution up to the amount of $13,463.14, defendant has waived any complaint about his ability to pay restitution. (People v. Edwards (1985), 135 Ill. App. 3d 671, 482 N.E.2d 137.) However, even if defendant had not waived his contentions of error regarding his ability to pay restitution, we could not find error in the trial court’s modification of the restitution order.

Defendant relies upon two cases in contending the trial court erred in ordering him to pay $225 per month on his restitution. The first case is Knowles, and the second case is Rupert. In both cases, the defendants were required to pay restitution in monthly installments. The appellate court modified the trial court’s restitution order in both cases and ordered each defendant to pay restitution up to the amount of 10% of his net income, payable on a monthly basis over a five-year period. In both cases, the court found the defendants would not be able to pay the restitution ordered by the trial court, based upon the peculiar financial situation of each defendant. These two eases did not hold that an appellate court must modify a trial court’s restitution order any time a defendant claims he does not have the ability to pay restitution in the manner in which the trial court has directed.

In the instant case, we find the trial court was well within its discretion in ordering defendant to pay $225 per month. We emphasize that by relying on the Knowles and Rupert cases the defendant is, in effect, asking us to reduce his restitution. This we cannot do absent an abuse of discretion by the trial court in its modification of the restitution order. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The restitution order was part of defendant’s sentence. The trial court is “normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

The trial court is required to fix a period of time, not in excess of five years, within which defendant’s restitution must be paid in full. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(f).) This is exactly what the trial court did. In so doing, the trial judge gave defendant the most lenient payment arrangements possible.

The trial judge was in a better position than we to determine what manner of payment was appropriate. He expressed serious reservations about defendant’s efforts to pay the restitution, and he frankly stated he did not believe defendant’s testimony concerning his income. The trial court was in a better position to assess defendant’s credibility and his ability to pay, and we defer to that assessment.

Affirmed.

GREEN and STEIGMANN, JJ., concur.