text:
    OAKLEY EUGENE NEAL, Ex’r of the Estate of Anna Neal, Deceased, Plaintiff-Appellant, v. JOHN J. BAKER, JR., Defendant-Appellee.
    Fifth District
    No. 5—88—0375
    Opinion filed February 21, 1990.
    Darrell F. Parish and Linda M. Castleman, both of Owen, Roberts, Parish, Castleman & Owen, Ltd., of Decatur, for appellant.

      Patrick J. Cadigan and Deborah L. Rose, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Springfield, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Hazel York departed this life June 11, 1982, leaving a will which was admitted to probate in Shelby County, Illinois. Under the will, the First Trust Bank of Shelbyville was named executor. Anna Neal was named as sole income beneficiary for life; upon her death the remainder was to be distributed among several beneficiaries.

On June 5, 1987, Anna Neal, now deceased, filed a complaint in circuit court against John Baker, Jr., the attorney hired by First Trust Bank to serve as attorney in administering the estate. Anna Neal alleged in her complaint that John Baker, Jr., had a duty to exercise a reasonable degree of skill in giving legal advice to First Trust Bank and performing services for it. Plaintiff alleged that this duty ran to her as a beneficiary of the estate. The complaint cited allegations of negligence by John Baker, Jr., as to his: (1) failure to make timely payments of Illinois inheritance taxes; (2) failure to take advantage of various tax benefits; (3) forcing Anna Neal to contest his position that she, rather than the residuary estate, should pay the inheritance tax; and (4) failure to diligently defend the will in a contest filed against the estate. Plaintiff alleged in the complaint that as a proximate result of one or more of the negligent acts, she suffered monetary loss.

Defendant’s motion to dismiss was allowed, and plaintiff was given leave to file amended complaints. Plaintiff filed first and second amended complaints. The second amended complaint, which is the subject of this appeal, essentially alleges: (1) pursuant to Hazel York’s will, plaintiff was to receive all of the income from the estate for her lifetime; (2) First Trust Bank was appointed executor; (3) First Trust Bank, as executor, has a fiduciary relationship with the plaintiff as a beneficiary of the estate; (4) the defendant John Baker, Jr., is a lawyer who was employed by First Trust Bank to serve as its attorney to administer the estate; (5) defendant’s employment by First Trust Bank was intended by the parties to be for the benefit of the plaintiff and the other beneficiaries; (6) defendant was negligent in carrying out his duties in administering the estate; and (7) as a proximate result of defendant’s negligence plaintiff suffered loss. The references of negligent conduct cited in plaintiff’s initial complaint were included in this second amended complaint.

Defendant filed his motion to dismiss plaintiff’s second amended complaint. The court entered its order, finding that no cause of action may lie for an alleged third-party beneficiary absent an allegation that the principal attorney-client contract was entered into with the express or specific intent that it directly benefit the alleged third-party beneficiary. The court thereupon granted defendant’s motion to dismiss the second amended complaint and dismissed with prejudice plaintiffs cause of action. Plaintiff appeals.

The issue presented for our review is whether under the facts presented an attorney for the executor of an estate owes a duty to the beneficiaries of the estate, and if so, whether plaintiff’s complaint stated a cause of action based on that duty. We find that plaintiff’s complaint failed to state a cause of action because we do not find under the facts of this case that a duty existed on behalf of the attorney for the estate as to the plaintiff.

It is well recognized that a fiduciary relationship exists between an attorney and a client, and the attorney owes the client the utmost fidelity, honesty and good faith. (Christison v. Jones (1980), 83 Ill. App. 3d 334, 405 N.E.2d 8.) An attorney owes a duty to a nonclient only in the most limited circumstances. (Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446.) In Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96, the supreme court established the standard for pleading the liability of attorneys to non-clients in legal malpractice actions. The court extended the traditional concept of attorney liability to include third parties who were “intended beneficiaries of the relationship between the client and the attorney.” (Pelham, 92 Ill. 2d at 20, 440 N.E.2d at 99.) A nonclient must prove that the primary purpose and intent of the attorney-client relationship is to benefit or influence the third party. (Pelham, 92 Ill. 2d at 21, 440 N.E.2d at 100.) Finally, the court held that where the attorney-client relationship is involved in an adversarial proceeding, there must be a “clear indication that the attorney’s representation is intended to directly confer a benefit upon the third party.” Pelham, 92 Ill. 2d at 23, 440 N:E.2d at 100.

In this case plaintiff in her second amended complaint alleged that she was an intended beneficiary of the attorney-client relationship between First Trust Bank and John Baker, Jr. Plaintiff argues that by virtue of her complaint containing an allegation of “intent,” her cause of action should not have been stricken. Plaintiff relies on Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226, in arguing that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. Our supreme court has said: “A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach”. (Teter v. Clemens (1986), 112 Ill. 2d 252, 256, 492 N.E.2d 1340, 1342.) We disagree with plaintiffs assertion that she has sufficiently alleged a cause of action.

Applying Pelham’s intent to directly benefit test to the facts alleged in the amended complaint, it is clear that Anna Neal was not a direct third-party beneficiary. The primary purpose of the attorney-client relationship between First Trust Bank and defendant was to assist First Trust Bank in the proper administration of its duties. (See Makela v. Roach (1986), 142 Ill. App. 3d 827, 830, 492 N.E.2d 191, 194.) It is obvious that defendant could not have been hired with the intent to directly benefit Anna Neal when the adversarial nature of the relationship between Anna Neal and the attorney becomes evident. In this case, for example, Anna Neal contested the defendant’s position that she should pay the inheritance tax as opposed to the estate. In such a situation, which is not uncommon in administering estates, the beneficiary becomes the opposing party in an adversarial forum. See Pelham, 92 Ill. 2d at 22, 440 N.E.2d at 100.

Plaintiff is correct that under Ogle v. Fuiten, 102 Ill. 2d 356, 466 N.E.2d 224, an attorney may owe a duty of due care to the intended beneficiaries under a will drawn by him. However, Ogle does not mandate that the drafters of a will owe fiduciary duties to intended beneficiaries of a will. In the recent supreme court opinion, McLane v. Russell (1989), 131 Ill. 2d 509, 546 N.E.2d 499, the court applied the intent to directly benefit standard of Pelham and concluded that the plaintiffs could maintain a legal malpractice claim against the defendant-attorney. The court reasoned that not only were the plaintiffs intended third-party beneficiaries of the contract for professional services between the defendant-attorney and his client, the testatrix, but the primary purpose of the transaction between the testatrix and the attorney when the attorney drafted her will was to confer a benefit upon the plaintiffs. McLane does not mandate that the drafters of a will owe fiduciary duties to intended beneficiaries of a will in all cases.

Plaintiff’s mere assertion that the attorney was hired with the intent to directly benefit plaintiff is not sufficient to state a cause of action. The intent plaintiff referred to in her complaint was nothing more than the general intent implicit in an executor hiring an attorney to assist in administering an estate. We hold no duty extends to a beneficiary under these circumstances.

Affirmed.

LEWIS, P.J., and HARRISON, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    BANK OF BENTON, n/k/a Boatmen’s Bank, a corporation, Plaintiff-Appellee, v. ROBIN S. LaBUWI et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0717
    Opinion filed February 22, 1990.

      Robert W. Lewis, of Benton, for appellants.
    Pamela Lacey, of Hart & Hart, of Benton, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendants, John Burlison and Robin LaBuwi, appeal from a summary judgment entered against them in favor of the plaintiff, Bank of Benton, construing defendants’ written guaranties to extend a promissory note, the debtor on that note being Prepaid Dental Services, Inc. On appeal defendants argue that the trial court erred in entering summary judgment because material issues of fact exist which must be resolved by the trier of fact.

Prepaid Dental Services, Inc., was a corporation organized in the State of Utah, and which became qualified to transact business in Illinois and Missouri. Defendants John Burlison and Robin LaBuwi became directors and shareholders of the corporation sometime prior to 1983. Prepaid Dental Services, Inc., obtained a loan with the Bank of Benton, now known as Boatmen’s Bank of Benton, and each of the defendants signed guaranties in the amount of $8,000 as to the promissory note with the Bank of Benton.

Prepaid Dental Services, Inc., began experiencing financial difficulties, and in 1983 Mr. Kay Walker, an officer and director of the corporation, presented a proposal to its stockholders and directors that a new corporation be formed to provide prepaid dental services in Missouri and Illinois, and that the Utah corporation cease activities in those States. Mr. Walker testified during his deposition that the proposal was presented at a meeting held December 15, 1983. He testified that at that meeting an agreement was executed by the representatives of Prepaid Dental Services, Inc., to carry out the formation of a new corporation under the name Missouri-Illinois Prepaid Dental Services, Inc. A list was subsequently prepared, specifying which stockholders would remain in the original corporation, and which would be included in the new corporation. John Burlison and Robin LaBuwi were listed as stockholders of the new corporation.

Howard Payne, who was chairman of the board and chief executive officer of the Bank of Benton in 1983 and 1984, testified at his discovery deposition that Kay Walker approached him to discuss restructuring the financing of the note held by the bank. Mr. Payne testified that the loan was restructured and that the initial loan was perhaps in a different name than the newly executed loan, but to him it was the same loan because the same people involved in the original note were named in the subsequent note. Mr. Payne did not recall any discussion with Kay Walker about transferring the debt of Prepaid Dental Services, Inc., into another corporation’s name. When asked whether he recalled having any meetings regarding the loan prior to consumating the restructured loan, at which Robin LaBuwi and John Burlison were present, Mr. Payne responded, “No.”

Kay Walker testified during his deposition that he advised Howard Payne of the intention of the shareholders of Prepaid Dental Services, Inc., to form a new corporation and to take over Prepaid Dental Services, Inc.’s operations in Missouri and Illinois. Mr. Walker testified that an agreement was reached between Mr. Payne and himself whereby the loan would be made to Prepaid Dental Services, Inc., and would later be transferred to the new corporation after the new corporation was organized. Mr. Walker testified that as a condition to the restructuring of the loan, an increase in the existing guaranties executed by the defendants on the original note was required. He stated at the deposition that both Burlison and LaBuwi were well aware that that was a requirement for the loan. Mr. Walker further testified that both Burlison and LaBuwi were instructed at the time they signed the guaranties that the new entity was not yet in place. Guaranties were in fact executed by the defendants, each guarantying payment on the indebtedness in the amount of $18,000. The defendants’ original guaranties of $8,000 each were released to them. Kay Walker testified that after obtáining the new guaranties of the defendants, he signed the new note for $235,000 with the Bank of Benton on January 31, 1984, in the name of Prepaid Dental Services, Inc., a Utah corporation.

Prepaid Dental Services, Inc., subsequently became insolvent and defaulted on the note. The Bank of Benton filed a six-count complaint naming as defendants Prepaid Dental Services, Inc., Robin La-Buwi, John Burlison, and other individuals alleged to have executed guaranties on behalf of the note with the Bank of Benton. Summary judgment on the issue of liability was entered against both Burlison and LaBuwi. After a hearing on damages, judgment was entered against defendants Burlison and LaBuwi in the sum of $21,916 each, which represented the amount of their guaranties plus attorney fees of $3,750 and costs of $166. John Burlison and Robin LaBuwi appeal.

The guaranties executed by Burlison and LaBuwi each consist of a single printed form with blanks to be filled in designating the debtor, the creditor, the amount of the guaranty, the State whose laws will govern the construction of the guaranty, the date of execution, and signature lines. Except for the date of execution and the signature of the guarantor, the guaranties executed by Burlison and LaBuwi are virtually identical. Each of the guaranties has handwritten in the blank designated for the debtor’s name, “Prepaid Dental Services, Inc.” The extent of the guaranty is also handwritten, showing the amount as “Eighteen Thousand Dollars ($18,000.00).” Robin LaBuwi’s guaranty has the initials RSL written beside the figure designating the amount of the guaranty. John Burlison’s guaranty has the initials JB written beside the $18,000 figure.

The discovery depositions of defendants John Burlison and Robin LaBuwi confirmed that they knowingly signed the loan guaranties and that each personally guaranteed payment of $18,000 on the restructured loan. Defendants testified, however, that at the time they signed the guaranties, they believed that the guaranties were against a loan obligation to Missouri-Illinois Prepaid Dental Services, Inc.

Robin LaBuwi testified that he could not recall whether at the time he executed the loan guaranty for $18,000, the space indicating the debtor on the guaranty as Prepaid Dental Services, Inc. was blank or not. He also did not know whether the space indicating the Bank of Benton as the creditor was blank at the time he executed the document. He did recall that the amount of the guaranty was on the form when he signed it, and that he in fact noted his initials on the form near the figure of $18,000. When asked whether anyone representing the Bank of Benton made any statements or representations to him about the loan guaranty agreement, Mr. LaBuwi testified that on the morning of January 23, 1984, Howard Payne advised him that “we were going to have a new loan and have to sign a guaranty for $18,000.” Robin LaBuwi testified that at the morning meeting, Mr. Payne also told Mr. Burlison and himself that the loan was going to be a new loan made to the corporation called Prepaid Dental of Illinois and Missouri. Mr. LaBuwi did not remember whether he told Howard Payne that he would not sign a guaranty for a new loan to the Utah corporation, Prepaid Dental Services, Inc. Mr. LaBuwi testified that later that same day he executed the loan guaranty. The only person present when he executed that guaranty was Kay Walker.

Mr. LaBuwi testified that it was one year after the guaranty was executed when he learned that it was for a loan to Prepaid Dental Services, Inc., a Utah corporation, and not for the Missouri-Illinois corporation as he thought. He testified that prior to signing the loan guaranty for $18,000, he was advised by Kay Walker that he would no longer be involved with the Utah corporation but that he would belong to the new corporation of Prepaid of Illinois and Missouri if he signed the guaranty. Mr. LaBuwi testified that even as of the date of the taking of his deposition, he did not in fact know whether he had been divested of his interest in the Utah corporation, nor did he know whether or not the new corporation had ever been formed.

John Burlison testified during his discovery deposition that when he signed the loan guaranty Kay Walker was the only person present. He testified, however, that earlier that morning he met with Howard Payne and that also present at that meeting were Mr. La-Buwi and Dr. Simpson. When asked what was discussed at that meeting, Mr. Burlison testified that Howard Payne told them that “the loan was going to be made to Prepaid Dental of Missouri and Illinois and that Prepaid of Utah, that would be done with, and that there was a new method of paying back because of the separation of the two corporations.” John Burlison further testified that at the morning meeting, “we went through it word by word front to back with Mr. Payne for the specific reason that we were concerned, too, about where the money was going, and we were not going to guarantee anymore [sic] money to the Utah corporation, and that was the main reason for having the meeting.” When asked whether anyone from the Bank of Benton made any misrepresentations to him about the loan guaranty, Mr. Burlison, referring to the meeting one year after the guaranty was signed, stated, “I was told at the meeting at the bank that it was a Utah corporation and it was on this form after — like I say, I don’t know when it was put there, but it was there, and no way did I guarantee anything to a Utah corporation.”

Mr. Burlison testified that prior to the signing of the loan guaranty he attended a meeting for the purpose of forming Prepaid of Missouri-Illinois. He testified that at that meeting Kay Walker and Mr. Lake said that they were going to handle the documents necessary to complete the formation of the corporation. Mr. Burlison testified that the new corporation was documented and viable, although he was uncertain of the date. He stated that he never attended a meeting of the new corporation, and to his knowledge, the new corporation has never had a meeting. He has never received any stock in the new corporation, and he testified that as far as he knew he never surrendered the stock he held in the Utah corporation.

Defendants argue on appeal that summary judgment was improperly granted because there exist factual disputes as to the following: (1) what the defendants knew and intended at the time the guaranties were executed; (2) the status of defendants as stockholders and directors of the Utah corporation; (3) whether the defendants received the loan proceeds and controlled the disbursement thereof; (4) who was charged with organizing the Missouri-Illinois corporation; and (5) which corporation the guaranties are expressly applicable to.

A motion for summary judgment may be granted when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552, 555). The purpose of summary judgment is not to try an issue of fact, but to determine whether a triable question of fact exists. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 495-96.) Summary judgment is a drastic remedy and must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 998, 473 N.E.2d 531, 534.) Moreover, the pleadings, affidavits, exhibits and depositions on file should be construed by the trial court strictly against the party moving for summary judgment and liberally in favor of the opponent. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 94, 392 N.E.2d 675, 677-78.) When the evidence shows no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231-32, 450 N.E.2d 756, 758.

Plaintiff argues that the factual disputes alleged by the defendants are not material to the underlying litigation and that, therefore, the court properly entered summary judgment. It is true that no matter how sharply controverted, facts irrelevant to the essential elements of plaintiffs cause of action will not warrant denial of a motion for summary judgment. (Equity General Insurance Co. v. Patis (1983), 119 Ill. App. 3d 232, 236, 456 N.E.2d 348, 351.) We have reviewed the pleadings and other matters that have been submitted and find that of the factual issues defendants contend exist, only the issue of whether the guaranties are ambiguous is a material issue to the underlying litigation. We address that issue below.

The rules of construction applicable to contracts generally also apply to contracts of guaranty (State Bank v. Cirivello (1978), 74 Ill. 2d 426, 431, 386 N.E.2d 43, 45), and if such a contract is unambiguous, it must be enforced as written. (Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183, 185, 450 N.E.2d 347, 349.) A guaranty contract which is unequivocal in its terms must be interpreted according to the language used, for it is presumed that the parties meant what their language clearly imports. (Bank of Homewood v. Sjo (1983), 113 Ill. App. 3d 179, 182, 446 N.E.2d 1214, 1216.) The defendants acknowledge that they signed the guaranties. They contend, however, that the guaranties are ambiguous because it is not certain whether the name Prepaid Dental Services, Inc., refers to the Utah corporation or the new corporation, and that, therefore, an ambiguity exists on the face of the instruments. They also contend that the name Prepaid Dental Services, Inc. may not have appeared on the guaranties when they signed them.

As to the defendants’ contention that the agreement was ambiguous, there can be no doubt that the reference to Prepaid Dental Services, Inc. referred to the Utah corporation. Both defendants acknowledge that Prepaid Dental Services, Inc., was the name given the Utah corporation for which they originally each executed guaranties of $8,000. The parties were aware of the financial strain Prepaid Dental Services, Inc., was under, that the original note with the Bank of Benton had not been satisfied, and that the obligation to the Bank of Benton was being refinanced. It is clear that the parties intended the new guaranties to prevent the bank from suffering any actual loss in connection with its loan to Prepaid Dental Services, Inc., while at the same time insuring the financial stability of the corporation’s operation, be it the Utah corporation or the new entity. Clearly the parties did not intend that the execution of the new guaranties would mean that Robin LaBuwi’s and John Burlison’s obligations would be discharged through any presumed, but merely technical, satisfaction of the original indebtedness. We find that the guaranties executed by the defendants are unambiguous.

As to the defendants’ contention that Prepaid, Dental Services, Inc. may not have appeared on the guaranties, the conduct of the parties to this action shows the trial court’s interpretation of the guaranties to be correct. (See Telegraph Savings & Loan Association v. Guaranty Bank & Trust Co. (1978), 67 Ill. App. 3d 790, 794-95, 385 N.E.2d 97, 100-01; Du Quoin State Bank v. Daulby (1983), 115 Ill. App. 3d 183, 450 N.E.2d 347.) After the guaranties were executed and the loan was refinanced, proceeds of the new note were disbursed through a checking account on which checks with the name Dental Associates were drawn. With the authorization of the defendants, Kay Walker issued checks to pay preexisting debts of the Utah corporation.

Robin LaBuwi testified at his deposition that even as of the date of the taking of his deposition he did not know whether he had been divested of his interest in the Utah corporation, nor did he know whether or not the new corporation had ever been formed. John Burlison testified that the new corporation was viable, although to his knowledge there had never been a meeting of the directors and/ or shareholders of the new corporation. Neither LaBuwi nor Burlison had ever received any stock in the new corporation, and neither knew whether he had been divested of his interest in the Utah corporation. To find that the defendants’ liability on their guaranties did not extend to the Utah corporation would not effecutate the intent of the parties, as expressed through their conduct. It would also permit the defendants to sit quietly by, benefiting from the loan proceeds, until the present suit was filed.

The defendants’ conduct in benefiting from release of the prior guaranties, knowing that the Utah corporation was in financial difficulty, and benefiting from the loan proceeds of the refinanced obligation, clearly establishes that even if the debtor’s name did not appear on the guaranties at the time they were executed, the name of the debtor was ultimately properly written upon the documents.

Accordingly, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

RARICK and WELCH, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELO ANTHONY GUERRIERI, Defendant-Appellant.
    Fifth District
    No. 5—88—0356
    Opinion filed February 26, 1990.

      George F. Taseff, of Jennings, Novick, Eggan & Ostling, of Blooming-ton, and Bruce Alter, of Miami, Florida, for appellant.
    Mark C. Hunter, State’s Attorney, of Metropolis (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a stipulated bench trial in Massac County, the defendant, Angelo Anthony Guerrieri, was found guilty of unlawful possession with intent to deliver a controlled substance and unlawful possession of a controlled substance. He appeals, contending that (1) the stop for a traffic violation was unreasonable and merely a pretext to search for evidence; and (2) the State failed to prove that the defendant voluntarily consented to the warrantless search of his luggage and other closed containers located in his vehicle.

At approximately 8 a.m. on October 23, 1987, Trooper Greg Geitt-man of the Illinois State Police and his immediate supervisor, Sergeant Dwain Goss, met at a rest area located at the junction of Interstate 24 and U.S. Route 45 (Route 45) outside Metropolis, Illinois, to discuss the day’s patrol assignments. As each officer arrived, he noticed a BMW automobile parked in the rest area with Florida license plates and what appeared to be a “shattered and obscured” rear window. A white male, later identified as defendant, was asleep in the vehicle, alone. A short time later, as both officers were seated in Goss’ squad car talking, they observed the BMW drive up the access road from the rest area and past them. The vehicle veered to the right of a safety island, arriving at the stop sign at the intersection of the access road and Route 45, and completed the right turn. At no time did defendant signal a right turn before proceeding east on Route 45.

Trooper Geittman decided to effect a traffic stop of the vehicle for failing to signal and for having an obscured rear window. Sergeant Goss admitted, however, that even absent the signal violation, it was “more than likely” the officers would have stopped the vehicle due to the condition of the rear window. After stopping the BMW, Trooper Geittman approached the defendant, who had exited the vehicle, advised him of the traffic violations and requested his driver’s license and vehicle registration. Observing a sheathed hunting knife lying between the driver’s seat and the open driver’s door, Trooper Geittman, for his personal safety, retrieved the knife and placed it on top of the car. Geittman then asked defendant to join him and Sergeant Goss, who had arrived at the scene, in Geittman’s squad car, where he issued defendant written warnings for failure to signal when required and for driving with an obstructed rear window. (See Ill. Rev. Stat. 1987, ch. 951/2, pars. 11 — 804, 12 — 503(e).) Having learned through the computer that defendant was not the registered owner of the BMW, Geittman ran a criminal history check, which revealed that defendant had been previously charged with a weapons violation and a narcotics violation. Based on this information, Geittman and Goss decided to ask defendant if he would consent to a search of the vehicle he was driving. Receiving defendant’s oral consent, Sergeant Goss prepared a standard departmental consent to search form that defendant read and signed.

Preparatory to the search, Geittman asked defendant if he had any drugs or firearms in the vehicle, and defendant admitted having a gun in the trunk. At the officers’ direction, defendant opened the trunk and pointed to a piece of luggage from which Sergeant Goss retrieved a semi-automatic pistol and ammunition. Further search revealed a man’s purse located on the rear seat of the BMW, within which was found a small Tupperware bowl. In that bowl, a substance containing cocaine was found. Geittman then took defendant into custody and transported him to the Massac County sheriff’s department.

At some point during the search, Sergeant Goss radioed the “K-9 Unit” to come to the scene. Officers Dan Stitt and J.D. Haverkamp of the Massac County sheriff’s department responded and, using a narcotics detection dog, conducted a search of the vehicle which yielded a package containing a substance containing cocaine. A custodial search of defendant’s person uncovered a small wooden vial which field-tested positive for the presence of cocaine.

The defendant was initially charged with unlawful possession with intent to deliver a controlled substance, armed violence, and unlawful possession of a controlled substance. The armed violence charge was dismissed prior to trial. Defendant’s motion to suppress evidence was denied following a hearing. Defendant waived his right to a jury trial and proceeded to a bench trial, the parties stipulating to the facts as presented at the motion to suppress hearing. Upon the court’s finding of guilt, defendant received an agreed disposition, the terms of which included eight years’ imprisonment, a fine of $1,000, a “street value” fine of $22,697, and costs.

Defendant first contends that the trial court erred in denying his motion to suppress evidence where there was no objectively reasonable basis for the initial stop of his vehicle. Both Trooper Geittman and Sergeant Goss testified that the defendant was stopped because his vehicle had an obscured rear window and because he failed to signal before turning onto Route 45. In its order denying the defendant’s motion to suppress evidence, the trial court found that “the Illinois State Police validly stopped the defendant and his vehicle for failure to signal pursuant to the Illinois Vehicle Code.” (See Ill. Rev. Stat. 1987, ch. 951/2, par. 11—804.) Findings of fact by the trial court are not to be disturbed unless against the manifest weight of the evidence. (People v. Medina (1978), 71 Ill. 2d 254, 258, 375 N.E.2d 78, 79; People v. Thomas (1979), 75 Ill. App. 3d 491, 493, 394 N.E.2d 624, 627.) Since a traffic violation provides more than a reasonable basis for stopping a vehicle (People v. Manikowski (1989), 186 Ill. App. 3d 1007, 1010-11, 542 N.E.2d 1148, 1151), a legitimate signal violation would provide Trooper Geittman with justification for stopping defendant. See People v. Tylkowski (1988), 171 Ill. App. 3d 93, 98, 524 N.E.2d 1112, 1116; People v. Assenato (1989), 186 Ill. App. 3d 331, 337, 542 N.E.2d 457, 460.

Defendant argues that his failure to signal when exiting the rest area was not a traffic violation under the applicable code provision. Section 11 — 804 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 804) states in pertinent part:

“§11 — 804. When signal required, (a) No person may turn a vehicle at an intersection *** or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person may so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.
(b) A signal of intention to turn right or left when required must be given continuously during not less than the last *** 200 feet traveled by the vehicle before turning outside a business or residence district.”

The record reveals that the rest area access road makes a T-intersection with U.S. Route 45. At the end of the access road is a small safety island which separates vehicles wishing to turn left and proceed west on Route 45 from those wishing to turn right and proceed east. Defendant asserts that he was not obligated to signal under section 11 — 804 (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 804), because he did not have to turn his vehicle “from a direct course or move right or left upon a roadway” in order to proceed east on Route 45 from the access road. However, defendant’s exhibit 1, a photo of the Route 45 access road intersection, reveals that an eastbound traveler would be required first to veer to the right of the safety island and then, after a stop at the stop sign, to complete the right turn onto Route 45. Therefore, under section 11 — 804, the defendant was obligated to signal his intention to turn right prior to reaching the safety island, and to continue his signal until his turn onto Route 45 was completed. As defendant does not dispute the fact that he failed to signal, we find that Trooper Geittman’s stop of defendant was reasonably based on a legitimate violation of the statute.

Defendant further contends that stopping him for an alleged traffic violation was merely a pretext to search his vehicle. In determining whether an investigative stop is invalid as pretextual, the proper inquiry is whether a reasonable officer would have made the seizure in the absence of an illegitimate motive. (United States v. Smith (11th Cir. 1986), 799 F.2d 704,708.) However, an objectively reasonable stop or other seizure is not invalid solely because the officer acted out of an improper or dual motivation. (Smith, 799 F.2d at 708-09; see also Assenato, 186 Ill. App. 3d at 338, 542 N.E.2d at 461.) “Whether a Fourth Amendment violation has occurred ‘turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ [citation] and not on the officer’s actual state of mind at the time the challenged action was taken.” Maryland v. Macon (1985), 472 U.S. 463, 470-71, 86 L. Ed. 2d 370, 378, 105 S. Ct. 2778, 2783, quoting Scott v. United States (1978), 436 U.S. 128, 136, 56 L. Ed. 2d 168, 177, 98 S. Ct. 1717, 1722.

In this case, Trooper Geittman acted reasonably in stopping defendant for failure to signal when required, since it is the primary statutory duty of Illinois State Police troopers to enforce the Illinois Vehicle Code. (Ill. Rev. Stat. 1987, ch. 121, par. 307.16.) Because we find the stop to be reasonable based on the signal violation, we need not consider whether the condition of the rear window alone would have furnished justification for a stop of defendant. In any event, while Sergeant Goss conceded that defendant “more than likely” would have been stopped even if he had signaled when exiting the rest area, the alternate reason given for the stop was a presumably proper one — defendant’s operation of a vehicle with an obscured and possibly unsafe windshield — rather than an improper one — defendant’s similarity to the “drug courier profile.” (See Reid v. Georgia (1980), 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752.) Therefore, at the time of the stop, the officers were acting on the reasonable inference that defendant had violated the Illinois Vehicle Code and not on pretext. See Assenato, 186 Ill. App. 3d at 338, 542 N.E.2d at 461.

Defendant’s final contention is that the trial court erred in finding that he voluntarily consented to a warrantless search of his luggage and other closed containers found in his vehicle. More specifically, defendant argues that the State failed to sustain its burden of proving consent, in the face of defendant’s testimony that he withdrew any permission he may previously have given to search his vehicle.

It is well established that consent to search waives the warrant requirement of the fourth amendment only to the extent granted by defendant in his consent. (People v. Porter (1986), 141 Ill. App. 3d 71, 73, 489 N.E.2d 1154, 1156, cert. denied (1986), 479 U.S. 951, 93 L. Ed. 2d 387, 107 S. Ct. 439; People v. Sanders (1976), 44 Ill. App. 3d 510, 515, 358 N.E.2d 375, 378-79.) Officers Goss and Geittman testified that prior to any search of the vehicle, defendant signed a written consent which defined the permissible scope of the search as “vehicle *** including luggage and contents thereof.” Defendant testified, however, that he initially gave only a limited oral consent to “look” into the interior of the car, that he twice attempted to withdraw this consent when he. observed Sergeant Goss open and search his luggage, and that he signed the written consent form only after the search was completed.

Defendant argues that his version of the events is partially corroborated by the testimony of Officer Stitt. While some discrepancy exists between the testimony of Stitt and the troopers as to who participated in the initial search and at what point defendant was taken from the scene, the three officers are consistent in their denial of any revocation or limitation of defendant’s consent. Indeed, Stitt testified that as he stood with defendant while his car was searched, the two “had a conversation about the weather and just how things were going.”

Based on the evidence presented at the motion to suppress hearing, the trial court specifically found that:

“2. *** defendant voluntarily gave consent, in writing, to the Illinois State Police to allow the vehicle he was driving and the contents and luggage therein to be searched;
3. That said Consent was given prior to any search of his vehicle as testified by Illinois State Police Officers Dwain Goss and Greg Geittman and not after said search as testified by the Defendant;
4. That Defendant did not revoke or limit his Consent in any manner ***.”

It is not for the reviewing court to determine the weight and credibility of evidence. It is the province of the court hearing the motion to suppress to determine the witnesses’ credibility and the weight to be given their testimony, since it had the advantage of observing their demeanor while testifying. (People v. Johnson (1984), 123 Ill. App. 3d 1008, 1012, 463 N.E.2d 877, 880.) A trial court’s ruling on a motion to suppress will not be overturned unless it is clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869, 871.) Applying these standards to the case at bar, we cannot say that the trial court’s conclusion is clearly erroneous.

Defendant cites People v. Broge (1987), 159 Ill. App. 3d 127, 511 N.E.2d 1321, for the proposition that the State had the burden of rebutting defendant’s assertion that he revoked his consent. Defendant’s reliance on Broge is misplaced. In Broge (159 Ill. App. 3d at 139, 511 N.E.2d at 1329), the trial court incorrectly allocated the burden of proof by requiring the defendants to rebut the officer’s uncorroborated testimony that entrance into defendant’s apartment was consensual. While it is true that when the State seeks to rely upon consent to justify the lawfulness of the search, it has the burden of proving that the consent was, in fact, freely and voluntarily given (Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792; Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2058), here, the State clearly met that burden on direct examination, and defendant’s contrary testimony could be rejected by the court without a further showing by the State. See Manikowski, 186 Ill. App. 3d at 1011, 542 N.E.2d at 1151.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.


author: JUSTICE RARICK

text:
    PAULA RODRIAN, Plaintiff-Appellee, v. JAMES A. SEIBER, Defendant and Third-Party Plaintiff-Appellant (Morski and Associates, Inc., Plaintiff and Third-Party Defendant).
    Fifth District
    No. 5—88—0582
    Opinion filed February 26, 1990.

      William C. Evers III, of Collinsville, for appellant.
    Ripplinger & Dixon, of Belleville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Janies A. Seiber, appeals from a verdict of $20,000 actual damages in favor of plaintiff, Paula Rodrian, after a jury trial in the circuit court of St. Clair County. We affirm.

In 1946, plaintiff and her husband purchased some 15 acres of land in Caseyville, Illinois. While the Rodrians lived on a portion of this land, they set aside the majority of the property to serve as a wildlife and bird sanctuary because of their mutual love for nature. They therefore allowed the land to remain in its natural state, untouched by civilization, resulting in a jungle of vegetation to some observers.

In March of 1981, defendant acquired the property adjacent to plaintiff’s land and decided to build a road along the property line. He contracted to have a survey done of his real estate in May, the same month Mr. Rodrian passed away, but because of the onset of winter and the difficulty in locating the boundary line, the survey was not completed. Defendant began constructing his road without the completed survey, and in so doing, bulldozed across the corner of plaintiff’s property, clearing a path some 170 feet long and 40 feet wide. He also cut through approximately 150 feet of fencing and 17 fence posts marking the boundary line. Plaintiff notified defendant of his trespass on her land in April of 1982. According to the testimony of plaintiff’s son and his girlfriend, however, work continued on the roadway on plaintiff’s property for at least two months after defendant was contacted by plaintiff. Plaintiff accordingly filed suit against defendant in trespass seeking actual damages for negligent trespass and actual and punitive damages for intentional trespass to her property. Plaintiff’s experts testified at trial the cost of restoring the land to its original contour was $18,000, while the value of the trees removed was approximately $14,500. Defendant, on the other hand, established through the use of plaintiff’s 1981 appraisal for inheritance tax purposes that the value of the entire 15-acre tract improved with a home amounted to only $41,600. He also brought out at trial that surrounding real estate sold for approximately $1,000 an acre at the time of the trespass, and the area damaged comprised only one-fourth of an acre. In addition, defendant’s experts testified the trees had no timber value and were good only for firewood. The jury awarded plaintiff $20,000 in actual damages but declined to award any punitive damages. In connection with Seiber’s third-party claim against the surveyor, Morski & Associates, Inc., the jury found no liability on the part of the surveyor for defendant’s trespass. This finding with respect to the third-party claim is not before us on appeal.

Defendant first argues on appeal that the trial court erred in refusing to strike the testimony of plaintiff’s expert as to the value of the trees removed from or damaged on plaintiff’s land during construction of the roadway. Defendant believes the expert’s opinion was not based upon facts adduced at trial and thereby amounted to nothing more than pure conjecture and speculation. We disagree.

It is true that regardless of how skilled or experienced an expert may be, the expert may not state a judgment or opinion based on conjecture. (See Royal Elm Nursing & Convalescent Center, Inc. v. Northern Illinois Gas Co. (1988), 172 Ill. App. 3d 74, 79, 526 N.E.2d 376, 379. See also Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 486-87, 414 N.E.2d 1079, 1083-84.) And, admittedly, plaintiff’s expert found it difficult to appraise the value of the trees removed because he was not able to examine those specific trees. He did, however, after viewing the entire property, inventory a comparable area on which to base his value of the trees. He also acknowledged a different area could have different types of trees in differing conditions, but an expert opinion couched in terms of probabilities or possibilities based upon certain assumed facts is not improper or inadmissible. (See Nicholas v. City of Alton (1982), 107 Ill. App. 3d 404, 408, 437 N.E.2d 757, 760.) The jury was fully aware of any “infirmities” in the expert’s opinion, and it was for the jury to determine his credibility. (See Myers v. Arnold (1980), 83 Ill. App. 3d 1, 9-10, 403 N.E.2d 316, 322-23.) The mere fact that plaintiff’s son testified he saw approximately 40 trees bulldozed down does not mean the expert’s calculations of 55 trees in the area were improper or contradicted by the evidence. Plaintiff’s son merely guesstimated the number of trees down; he did not actually count them. More importantly, such differences merely go to credibility, not admissibility. We see no error in the court’s refusal to strike the expert’s testimony in this instance.

Defendant also argues the jury’s verdict was excessive and erroneous. Defendant points out the value for the entire 15-acre tract and house was approximately $42,000. The area damaged comprised only one-fourth of an acre on the most remote corner of the land. Yet, the jury awarded plaintiff $20,000, almost half the value of the whole tract, for a very small fraction of the land. Defendant believes the jury should have awarded only a fraction of the value of an acre of land, or one-fourth of $1,200, the price he paid per acre for the adjacent land. We disagree. Defendant, in effect, is attempting to force a sale of plaintiff’s land. What defendant fails to recognize is that plaintiff was not holding onto her land for investment purposes. It was her home and her desire and attempt to preserve nature and wildlife. As this court previously noted in Roark v. Musgrave (1976), 41 Ill. App. 3d 1008, 355 N.E.2d 91:

“An owner of real estate has a right to enjoy it according to his own taste and wishes, and the arrangement of buildings, shade trees, fruit trees, and the like may be very important to him *** and the modification thereof may be an injury to his convenience and comfort in the use of his premises which fairly ought to be substantially compensated ***. The owner of property has a right to hold it for his own use as well as to hold it for sale, and if he has elected the former he should be compensated for an injury wrongfully done him in that respect, although that injury might be unappreciable to one holding the same premises for purposes of sale.” 41 Ill. App. 3d at 1013 n. 2, 355 N.E.2d at 95 n.2, quoting Gilman v. Brown (1902), 115 Wis. 1, 7, 91 N.W. 227, 229.

See also Myers, 83 Ill. App. 3d at 7, 403 N.E.2d at 321; Arras v. Columbia Quarry Co. (1977), 52 Ill. App. 3d 560, 565, 367 N.E.2d 580, 583-84.

An award of damages is intended to compensate an injured party for the wrong done to him. The goal is to place that injured party as nearly as reasonably possible in the same position he would have been had the injury not been inflicted. (Roark, 41 Ill. App. 3d at 1011, 355 N.E.2d at 94.) While generally the measure of damages for injury to realty is the difference in the fair market value of the property immediately before and after the injury (see Arras, 52 Ill. App. 3d at 564, 367 N.E.2d at 583), such “rules” serve as guidelines only. They are not to be applied in an arbitrary, formulaic or inflexible manner in every instance so as to deprive an injured party of just compensation. (Roark, 41 Ill. App. 3d at 1011, 355 N.E.2d at 94. See also Myers, 83 Ill. App. 3d at 7, 403 N.E.2d at 321.) We believe there has never been a more appropriate case to follow such dictates than under the circumstances presented to us here. The trial court quite properly tendered to the jury a damage instruction encapsulating all of the opinions on damage to real estate from trespass currently in effect in Illinois. The jury, being properly instructed, arrived at a verdict which it believed adequately compensated plaintiff for the wrong done to her land. We see no basis for disturbing that verdict in this instance. (See Zueck v. City of Nokomis (1987), 160 Ill. App. 3d 140, 145, 513 N.E.2d 125, 129.) To restore the damaged land to its original contours alone will cost some $18,000, to say nothing of “replacing” all of the trees and vegetation. An award of $20,000 is not so unreasonable or so disproportionate to the value of the land in light of the harm done to justify reversal in this instance. See Myers, 83 Ill. App. 3d at 7-8, 403 N.E.2d at 321; Pierce v. DeJong (1973), 13 Ill. App. 3d 889, 892, 300 N.E.2d 782, 785. See also Zosky v. Couri (1979), 77 Ill. App. 3d 1033, 1034, 397 N.E.2d 170, 171; Arras, 52 Ill. App. 3d at 565-66, 367 N.E.2d at 584. But see First National Bank v. Artico Engineering Co. (1975), 32 Ill. App. 3d 451, 454, 335 N.E.2d 591, 593.

Defendant’s third and final argument on appeal is the trial court erred in failing to direct a verdict in his favor on plaintiff’s count for willful and wanton misconduct when there was no direct evidence on the record to support such a verdict. Defendant takes issue with the court’s denial of his motion particularly because such denial allowed for evidence of his net worth to be placed before the jury, thereby informing it he had sufficient assets to pay a large award on the negligence count.

While our courts previously have held that an intentional trespass, under a mistaken claim of right, does not entitle the landowner to punitive damages, it is equally true that when a wrongful act is accompanied by aggravating circumstances such as willfulness, wantonness, malice or oppression, punitive damages are recoverable. (See Wetmore v. Ladies of Loretto (1966), 73 Ill. App. 2d 454, 467, 220 N.E.2d 491, 497-98.) Willful and wanton misconduct is that act intentionally done or that act taken, under the circumstances known, in reckless or conscious disregard of probable injurious consequences. (Albers v. Community Consolidated No. 204 School (1987), 155 Ill. App. 3d 1083, 1085, 508 N.E.2d 1252, 1254.) Here, plaintiff introduced evidence at trial that defendant not only crossed over plaintiff’s property line prior to obtaining the outcome of the survey ordered after being informed the boundary line had not yet been located because of dense vegetation, but also crossed over the property line repeatedly after being advised by plaintiff of his trespass on her land. Such evidence was more than sufficient to submit the issue of punitive damages to the jury. (See Roark, 41 Ill. App. 3d at 1014-15, 355 N.E.2d at 96;) And, because punitive damages were still at issue, evidence of defendant’s net worth was admissible. The trial court committed no error in denying defendant’s motion for a directed verdict on plaintiff’s count for willful and wanton misconduct in this instance. See Roark, 41 Ill. App. 3d at 1014-15, 355 N.E.2d at 96; First National Bank, 32 Ill. App. 3d at 455, 335 N.E.2d at 594.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County in favor of plaintiff.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


text:
    ROBERT SCOTT, Plaintiff-Appellant, v. ARCHER-DANIELS-MIDLAND COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—88—0674
    Opinion filed February 27, 1990.

      Grady E. Holley, of Holley, Keith & Huntley, of Springfield, for appellant.
    R. Samuel Postlewait and Glen A. Featherstun, both of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal arises from the trial court’s granting of defendant’s motion to dismiss plaintiff’s complaint with prejudice. For purposes of this appeal, we will consider the facts as stated in the pleadings as true.

On December 4, 1984, Robert Scott was injured while engaged in the course of his employment. At the time, he was working as a laborer in a plant owned by the defendant Archer-Daniels-Midland Company (Archer-Daniels). Plaintiff filed a complaint on October 8, 1987. Subsequently plaintiff filed an amended complaint, which is the subject of this appeal. Count I was directed at the defendant Archer-Daniels. Count II asserted a cause of action against the manufacturer, seller and installer of certain steam pipes located in Archer-Daniel’s plant where the injury allegedly occurred. Plaintiff alleged in his complaint that subsequent to his injury he was incarcerated in the Illinois penitentiary from January 1986 to January 1987.

Archer-Daniels filed a motion to dismiss, with prejudice, count I of plaintiff’s complaint, pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), which provides for dismissal of an action that is not commenced within the time limited by law. Archer-Daniels argued that section 13 — 202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13— 202) requires that actions for damages for an injury to the person be commenced within two years next after the cause of action accrued. Defendant contended that although plaintiff alleged that he was incarcerated from January 1986 to January 1987, the statute of limitations was not tolled.

In opposition to Archer-Daniel’s motion to dismiss, plaintiff argued that section 13 — 211 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211) tolled the time within which plaintiff had to commence his cause of action. Defendant argued, and the circuit court agreed, that based on the language of section 13 — 211, the plaintiff had to have been incarcerated at the time the action accrued in order to toll the two-year statute of limitation. The court granted defendant’s motion to dismiss with prejudice. This appeal ensued.

The sole issue on appeal is whether the tolling provisions of section 13 — 211 apply to this case. Section 13 — 211, as it read at the time plaintiff filed his complaint, provided as follows:

“If the person entitled to bring an action, specified in Sections 13 — 201 through 13 — 212 of this Act, at the time the cause of action accrued, is under the age of 18 years, or under legal disability, or imprisoned on a criminal charge, he or she may bring the action within 2 years after the disability is removed.” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211.

The cardinal rule of statutory construction, to which all other rules of construction are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. (People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014, 1016; Metropolitan Life Insurance Co. v. Washburn (1986), 112 Ill. 2d 486, 492, 493 N.E.2d 1071, 1074.) In determining legislative intent, courts should first consider the statutory language. Where the language is clear and unambiguous, courts must enforce the law as enacted without resort to other aids. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076, 1079; Consolidation Coal Co. v. Department of Mines & Minerals (1987), 160 Ill. App. 3d 677, 679, 514 N.E.2d 9, 10.) However, when a statute is ambiguous on its face, as is section 13 — 211, the court should look to similar statutes as an aid to construction. Di Falco v. Board of Trustees (1988), 122 Ill. 2d 22, 27, 521 N.E.2d 923, 925.

Plaintiff submits that the legislature intended the clause at the time the cause of action accrued to apply only to the case of a minor and not to the other disabilities set forth in that section. Plaintiff contends that the disjunctive conjunction or used in the statute indicates that the various subsections which the word or connects should be read separately from one another. In support of his argument plaintiff cites People v. Vraniak (1955), 5 Ill. 2d 384, 125 N.E.2d 513, cert. denied (1955), 349 U.S. 963, 99 L. Ed. 2d 1285, 75 S. Ct. 895. In Vraniak the statute which was construed read:

“Whoever conveys into the penitentiary, or into any jail or other place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids, abets, or assists such prisoner to escape or to attempt to escape from any jail, prison, or any lawful detention whether such escape is effected or attempted or not, or conceals or assists any convict after he had escaped, shall upon convic.tion thereof ***.” (Emphasis added.) (Ill. Rev. Stat. 1947, ch. 38, par. 228.)

The issue before the court was whether the qualifying phrase regarding intent which preceded the first clause in the statute should also be read as applying to the two subsequent clauses, thus requiring intent to be proven regardless of the fashion in which the statute was violated. The court, noting that as used in its ordinary sense the word or marks an alternative indicating that the various members of the sentence which it connects are to be taken separately, held that intent was an element only as to the first portion of the statute, and did not have to be alleged or proved as to the second and third alternatives.

Plaintiff submits that a similar statutory interpretation as was given in Vraniak should be rendered in the case at bar. Plaintiff argues that the qualifying clause at the time the cause of action accrued should only apply to the situation involving minors, since the disjunctive conjunction or is used in the statute. We disagree.

In Estate of Riha v. Christ Hospital (1989), 187 Ill. App. 3d 752, 544 N.E.2d 403, a decision involving the application of section 13 — 211 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211) to a plaintiff adjudged incompetent, the court interpreted the clause at the time the cause of action accrued as applying to the class of persons designated as being under legal disability. Furthermore, the interpretation of similar statutory language as section 13 — 211 was considered in Hamil v. Vidal (1986), 140 Ill. App. 3d 201, 488 N.E.2d 1024. The statute involved in Hamil, section 13 — 212 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212), read in part as follows:

“If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or under legal disability, or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.”

The Hamil court held that “[u]nder the applicable statute of limitations, imprisonment on criminal charges on the date the cause of action occurred tolls the running of the period until the disability is removed or, in other words, until the plaintiff is no longer imprisoned.” (Hamil, 140 Ill. App. 3d at 203-04, 488 N.E.2d at 1026.) Like the statute discussed in Hamil, upon careful reading, section 13 — 211 reveals that the tolling provision applies if the disabilities therein named existed at the time the cause of action accrued.

In the case at bar, the clause is under the age of 18 years is inserted after the clause at the time the cause of action accrued. The comma after the qualifying clause, and before the three classes of persons designated in the statute, evidences the legislative intent to apply the language at the time the cause of action accrued to each of the classes of disability espoused in the statute. The disjunctive conjunction or appearing between each of the three classes of disability does mark an alternative, indicating that the classes of disability listed in the sentence which it connects are to be taken separately. By not placing the qualifying clause after the first designation of a class of persons, the statute, unlike the one in Vraniak, and similar to the statute in Hamil, reads so as to apply the qualifying clause to each class of persons therein designated. It appears, therefore, by the general rules of punctuation, that the comma separating the qualifying clause from the three classes of disability which are then separated by the disjunctive conjunction or, operates to apply the qualifying clause to each class of disability.

The legislative intent behind section 13 — 211 supports our interpretation. The legislature’s intent in section 13 — 211 is evident through an amendment to the Act, which was approved and became effective on November 23, 1987. (Pub. Act 85 — 907.) That amendment incorporated an amendment by Public Act 85 — 18, which substituted “13 — 210” for “13 — 212,” and rewrote section 13 — 211 as follows:

“Minors, persons under legal disability, and imprisoned persons. If the person entitled to bring an action, specified in Sections 13 — 201 through 13 — 210 of this Act, at the time the cause of action accrued, (i) is under the age of 18 years, (ii) is under legal disability, or (iii) is imprisoned on a criminal charge and the claim is not against the Illinois Department of Corrections or any past or present employee or official of the Department of Corrections, then he or she may bring the action within 2 years after (i) the person attains the age of 18 years, (ii) the disability is removed, or (iii) the person ceases to be imprisoned.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211.)

Now there is no question that the tolling provision of section 13 — 211 applies to each class of disability. An amendment to a statute is an appropriate source for determining the legislative intent. (People v. Rink (1983), 97 Ill. 2d 533, 540, 455 N.E.2d 64, 68; O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271-72, 408 N.E.2d 204, 209.) An amendment of an unambiguous statute indicates a purpose to change the law, while no such purpose is indicated by the mere fact of an amendment of an ambiguous provision. (O’Connor, 81 Ill. 2d at 271, 408 N.E.2d at 209.) The amendment to section 13 — 211 by Public Act 85 — 907 creates no substantive change other than specifying that the claims of the class of persons who are imprisoned must not be “against the Illinois Department of Corrections or any past or present employee or official of the Department of Corrections.” Other than this change, it is clear that the purpose of the amendment was to clarify the ambiguity as to whether or not the tolling provision applied to each class of persons designated in section 13 — 211. We view this amendment not as a substantive change in the law, but rather as a clarification of section 13 — 211 as it existed at the time plaintiff filed his complaint. We hold in the instant case that the qualifying clause of section 13 — 211 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211) applies to each of the three designated classes of disability therein named.

As the plaintiff in the case at bar was not incarcerated at the time his cause of action accrued, and as the two-year statute of limitation to his cause of action ran prior to the filing of his complaint, the trial court’s granting of defendant’s motion to dismiss with prejudice is hereby affirmed.

Affirmed.

LEWIS, P.J., and RARICK, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE A. VAZQUEZ, Defendant-Appellant.
    Fifth District
    No. 5—88—0502
    Opinion filed February 2, 1990.

      Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Jose A. Vazquez, was convicted after a jury trial in the circuit court of Franklin County of unlawful use of a weapon by a felon, unlawful possession of phencyclidine and unlawful possession of lysergic acid diethylamide in connection with an incident that occurred in May of 1988. He was sentenced to five years’ imprisonment for unlawful use of a weapon by a felon and three years’ imprisonment for each of the possession convictions, all sentences to run concurrently. Defendant appeals from his convictions and sentences.

Defendant was apprehended on May 22, 1988, by Officer Mandrell of the West Frankfort police department, apparently in connection with the investigation of a possible hijacking of a truck on 1-57. Defendant was found in the area walking along a dirt road. When Mandrell approached defendant and ordered him to put his hands up against a tree, defendant informed him he had a gun in his back pocket. Mandrell patted down defendant and found the gun. After additional pat-downs, eight or nine loose bullets and a pill bottle containing drugs were retrieved from the pocket and lining of defendant’s lightweight, windbreaker jacket. Defendant’s theory of defense was that the officers found the gun and drugs in a car a half mile away. The jury, however, chose not to believe defendant’s theory.

Defendant first argues on appeal all three of his convictions must be reversed because the testimony of the State’s witnesses was so improbable and contradictory as to not remove all reasonable doubt of his guilt. Defendant first points to the testimony of Mandrell. According to defendant, Mandrell first testified he found the pistol in defendant’s back pocket, then later in his back hip area, and then later again, from inside defendant’s pants, as defendant claims in an apparent attempt to maneuver around the realization defendant’s pants lacked pockets. Mandrell further testified he patted down defendant twice and found only a gun and the container of drugs. A second officer who arrived later upon the scene also patted down defendant and found several loose bullets and a box of bullets in the jacket defendant allegedly was wearing. Defendant finds it incredible that Officer Mandrell, with some nine years of police experience, could twice miss the bullets in his lightweight, windbreaker jacket. Moreover, defendant points out the jail log and records do not reflect defendant was wearing a jacket nor was any jacket found in the locker where defendant’s clothes were secured after his arrest. Defendant claims the jacket never existed and was invented to support the officers’ assertions defendant was carrying a gun, bullets and drugs when arrested because the rest of his clothing contained no pockets. Defendant also argues Mandrell testified he stopped at the car involved in the alleged hijacking to talk with the other officers, thereby giving him the opportunity to obtain the gun and drugs to “plant” on defendant, while the other officers testified Mandrell never stopped at the car and communicated with them by radio only. Defendant believes such oscillations and improbabilities in the officers’ testimony demonstrate the jury’s finding is against the manifest weight of the evidence. We disagree. Inconsistencies in and contradictions of testimony do not destroy credibility as a matter of law. (See People v. Sykes (1977), 45 Ill. App. 3d 674, 680, 359 N.E.2d 897, 901.) Rather, the credibility of witnesses and the weight to be given their testimony are for the jury to decide. (People v. Hunter (1984), 124 Ill. App. 3d 516, 527, 464 N.E.2d 659, 669.) Only when the evidence is so unreasonable or improbable as to leave a reasonable doubt as to a defendant’s guilt will we as a reviewing court disturb that finding. (See People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276. See also People v. Adams (1970), 46 Ill. 2d 200, 208-09, 263 N.E.2d 490, 494, aff'd (1972), 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916.) Here, the jury was made aware repeatedly of all possible alleged inconsistencies and contradictions in the witnesses’ testimony and defendant’s line of defense. The jury simply found the officers’ versions to be more credible. The issue was not whether the gun was found in the back pocket of defendant’s pants or in the waistband, but whether defendant had possession of a gun at all. Similarly, numerous officers testified defendant was wearing a jacket when brought into the station. The evidence reviewed in the light most favorable to the prosecution amply supports the jury’s verdict beyond a reasonable doubt. (See Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277; People v. House (1986), 141 Ill. App. 3d 298, 303, 490 N.E.2d 212, 216.) Having reached this conclusion, we avoid any possible double jeopardy claims in light of our disposition of defendant’s second contention on appeal. See People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.

As his second issue on appeal, defendant argues he was denied effective assistance of counsel, depriving him of a fair trial. Based on the peculiar posture of the record before us, we must agree. Defendant points to three instances of alleged ineffective assistance. We, however, need address only one, defense counsel’s failure to take advantage of a prior favorable ruling prohibiting the State from mentioning to the jury any specifics of defendant’s prior felony conviction.

Generally speaking, a defendant is entitled to competent but not perfect representation. (See People v. Stewart (1984), 104 Ill. 2d 463, 491-92, 473 N.E.2d 1227, 1240.) Consequently, mistakes in judgment or in trial strategy or tactics do not of themselves render representation incompetent. (Stewart, 104 Ill. 2d at 492, 473 N.E.2d at 1240.) Rather, a defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability, but for counsel’s errors, the outcome of the proceedings would have been different. Strickland v. Washington (1984), 466 U.S. 668, 686, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255.

Here, the record reveals that early in the trial, outside the presence of the jury, the trial court ruled the State was not to mention to the jury the nature of defendant’s prior felony conviction for possession of controlled substances in proving a felony conviction for purposes of the unlawful use of a weapon by a felon charge. The court specifically stated it believed “it is highly prejudicial to start naming prior offenses *** when the man is standing trial for the same offense.” The court concluded the jury would not see the prior conviction but would be instructed as to its existence without getting into any particulars. At the close of all the evidence during the instruction conference, however, the court asked the prosecution if all exhibits, including the record of defendant’s prior conviction, were to go to the jury. The certified statement of conviction clearly identified the nature of that conviction. The prosecutor responded “yes” without objection by defense counsel or any reminder of the court’s prior ruling excluding such information. The court subsequently instructed the jury that the parties stipulated defendant’s prior conviction for possession of controlled substances was a felony. For some reason, any explanation being completely absent from the record, the trial court totally changed its position. Whether or not the court’s initial ruling was erroneous, defense counsel’s failure to take advantage of it was unacceptable. (See People v. Carroll (1985), 131 Ill. App. 3d 365, 367, 475 N.E.2d 982, 984.) While we may suspect some other discussion occurred prompting the change in the court’s ruling, we simply have no evidence on the record before us of such a conference or, for that matter, any other reason to explain the abrupt turnabout. Admittedly the State had the right to prove defendant’s prior conviction; indeed, it was a necessary element of the offense. (See People v. McGee (1987), 165 Ill. App. 3d 833, 838-40, 520 N.E.2d 836, 839-40.) But, it also was within the discretion of the trial court to prohibit the State from revealing the nature of that prior conviction. (See People v. Slaughter (1980), 84 Ill. App. 3d 88, 95-96, 404 N.E.2d 1058, 1064.) Given the state of the record before us, we can only conclude defense counsel erred in failing to remind the court of its earlier ruling. And, because of the nature of the prior conviction, we cannot rule out the reasonable probability defendant was prejudiced by the presentation of such information to the jury to the extent of depriving him of a fair trial. (See Carroll, 131 Ill. App. 3d at 367, 475 N.E.2d at 984. See also People v. Rogers (1989), 187 Ill. App. 3d 126, 138, 543 N.E.2d 300, 307; People v. Sorice (1989), 182 Ill. App. 3d 949, 957, 538 N.E.2d 834, 839; People v. Hanlon (1985), 137 Ill. App. 3d 305, 316-17, 483 N.E.2d 1332, 1339-40; In re Estate of Loesch (1985), 134 Ill. App. 3d 766, 770, 481 N.E.2d 32, 35; Shehy v. Bober (1979), 78 Ill. App. 3d 1061, 1068, 398 N.E.2d 80, 86. Cf People v. Powell (1989), 180 Ill. App. 3d 315, 320-23, 535 N.E.2d 1008, 1011-13.) We therefore must reverse defendant’s convictions and remand this cause for a new trial. In the future, we suggest such rulings and corresponding motions in limine or stipulations should be in writing to avoid similar problems resulting from vague and unclear records.

We further note that should the jury find defendant guilty on both possession charges, only one conviction can stand. Simultaneous possession of more than one type of controlled substance constitutes a single offense, supporting only one conviction. See People v. Manning (1978), 71 Ill. 2d 132, 137, 374 N.E.2d 200, 202; Hunter, 124 Ill. App. 3d at 549, 464 N.E.2d at 684.

For the aforementioned reasons, we reverse defendant’s convictions and remand this cause to the circuit court of Franklin County for a new trial.

Reversed and remanded.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL KEMPFER, SR., Defendant-Appellant.
    Fifth District
    No. 5—88—0682
    Opinion filed February 8, 1990.

      G. Ronald Kesinger, of Jacksonville, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Barbara J. Slingerland, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Terrell Kempfer, Sr., appeals from an order of the circuit court of Jackson County denying his motion to withdraw his plea of guilty and to vacate the judgment. This court affirms.

On August 27, 1987, an information was filed charging defendant and his wife, Julie Kempfer, with unlawful delivery of cannabis (Ill. Rev. Stat. 1985, ch. bíPk, par. 705(d)) and unlawful distribution of a look-alike substance (Ill. Rev. Stat. 1985, ch. 56x/2, par. 1404(b)). At the preliminary hearing on September 30, 1987, the same public defender for Jackson County represented both defendant and his wife. The circuit court found probable cause on both counts. Eventually, on June 6, 1988, defendant and his wife pleaded guilty to certain charges pursuant to a negotiated plea.

In exchange for their pleas, defendant was sentenced to two consecutive four-year terms of imprisonment and to pay a fine and costs. The State dismissed five other counts against defendant. As a result of the same plea negotiation, defendant’s wife pleaded guilty to a charge of unlawful possession of cannabis. The State dropped other charges against her. The court found Julie Kempfer to be 20 years old, to have one child aged nine months, and to be pregnant with another. Pursuant to the plea agreement, Julie Kempfer was sentenced to a two-year period of probation, and the State dismissed the charges against Tonya Clover. Ms. Clover was represented by the same public defender at this hearing.

The circuit court informed defendant of his rights and ascertained the voluntariness of his plea. It determined that defendant could read, write and understand English, and was not under the care of a psychiatrist or psychologist. The court twice asked defendant whether he had had time to discuss the plea negotiations with his attorney. Defendant stated that he had. In addition, defendant stated that he had discussed the negotiations with his wife and others while in jail. The court informed defendant (1) of the possible penalties, (2) of his right to plead not guilty, (3) by pleading guilty he waived his right to trial by either jury or court, (4) of the presumption of innocence which is lost by a guilty plea, (5) of his right to confront his accusers and cross-examine them, and (6) by pleading guilty, defendant waived his right to call witnesses and present evidence on his own behalf.

The factual basis of the pleas was presented to the trial court. On October 1, 1986, an agent of the Department of Criminal Investigation asked defendant if he had any marijuana. Defendant replied that he had and asked his wife to show some to the agent. A bag was produced. The agent .then asked defendant for two ounces. He was given two ounces of marijuana at that time. The agent then asked defendant if he had any speed for sale. Defendant directed his 22-year-old son to retrieve a bottle from an automobile. His son returned with a bottle containing pink-and-white pills with blue spots on them. The pills had the words “357 Magnum” on them. When questioned as to whether they were good speed, defendant replied that they were. The agent purchased five pills and the marijuana. The evidence was tested in the Carbondale crime lab and determined to be 38.0 grams of cannabis and five pills that were basically caffeine. Defendant heard the factual basis read to the court and declined to add to or change the statement.

The court then explained the difference between consecutive and concurrent sentences to defendant. After defendant had read and understood the written plea, he signed it. The circuit court then sentenced defendant.

On July 1, 1988, defendant filed a motion to withdraw his plea of guilty and to vacate judgment. He testified that at the time of his plea he had been incarcerated for four to five days and was under a lot of strain due to concern for his wife and children and what would happen to them if he refused the agreement. He testified that he was afraid that he and his wife would be tried, both might lose, and then the babies would be taken away.

Defendant raises the following issues: (1) whether the circuit court’s finding that defendant was not denied effective assistance of counsel as a result of the joint representation of defendant and his wife was manifestly erroneous, and (2) whether defendant’s plea was voluntary after he was advised by his attorney that if he did not accept a negotiated plea arrangement, his pregnant, 20-year-old wife might be imprisoned and his children raised by others, and his 22-year-old son might be prosecuted.

Normally, the law is quite clear that a voluntary guilty plea waives all questions other than the voluntary and intelligent character of that plea. (Tollett v. Henderson (1973), 411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602.) Once a defendant has admitted in open court that he is in fact guilty, he may not raise claims of constitutional violations that occurred prior to his guilty plea. He may only attack the voluntary character of his plea. (Tollett, 411 U.S. at 267, 36 L. Ed. 2d at 243, 93 S. Ct. at 1608.) However, defendant argues that due to a conflict of interest between defendant and wife, his plea was not voluntary, and he did not receive effective assistance of counsel. Although defendant raises two issues, this court finds that the question of conflict of interest goes to the voluntariness of the plea, and we will so address the question.

The United States Constitution guarantees effective assistance of counsel in the sixth and fourteenth amendments. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671; People v. Good (1979), 68 Ill. App. 3d 333, 338, 385 N.E.2d 911, 915.) The mere representation of codefendants is not a per se violation of this constitutional guarantee. Requiring one attorney to represent two codefendants whose interests actually conflict, however, does deny one of them effective assistance of counsel. (Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173.) To prevail in a constitutional claim of ineffective assistance of counsel due to joint representation, a defendant must show actual conflict of interest manifested at trial. (People v. Berland (1978), 74 Ill. 2d 286, 299, 385 N.E.2d 649, 655; People v. Vriner (1978), 74 Ill. 2d 329, 341, 385 N.E.2d 671, 676; People v. Good (1979), 68 Ill. App. 3d 333, 338-39, 385 N.E.2d 911, 915.) Before we reverse a conviction without requiring a showing of prejudice to the defendant, a positive basis must be found for concluding that an actual conflict of interest existed. Good, 68 Ill. App. 3d at 339, 385 N.E.2d at 915.

Defendant asserts that the conflict was obvious in the disparity of sentences negotiated by counsel. A review of the record, however, discloses good reason for the disparity with no conflict of interest apparent. In the first place, the agent conducted business with defendant. His wife was merely present, while defendant took a more active role. In addition, defendant was present during the plea hearing and did not object to the stipulated facts which indicated he had taken a much more active role than his wife.

The mere fact that defendant’s wife was younger and pregnant does not demonstrate the type of antagonistic defenses which would lead to ineffective assistance of counsel. The fact that prosecutors and joint defense counsel consider one codefendant more culpable than another does not necessarily constitute a conflict of interest. People v. Canales (1980), 86 Ill. App. 3d 738, 743, 408 N.E.2d 299, 303.

In United States v. Mandell (7th Cir. 1975), 525 F.2d 671, 678, two defendants claimed a defense against a third. According to the Seventh Circuit Court of Appeals, where two defendants of unequal culpability are represented by the same counsel, the sixth amendment guarantee of counsel is not automatically violated.

It is possible that an independent attorney may have pursued a strategy different from the one employed by counsel here; it is also possible that he would have acted no differently than defendant’s attorney did here. Illinois courts have refused to find hostility between the interests of criminal codefendants based on the mere possibility that a strategy available to defense counsel would have helped one defendant at the expense of another. (People v. Echols (1978), 74 Ill. 2d 319, 327-28, 385 N.E.2d 644, 648; People v. Canales (1980), 86 Ill. App. 3d 738, 743-44, 408 N.E.2d 299, 303.) Defendant has failed to show counsel’s representation fell below an objective standard of reasonableness or there is a reasonable probability that were it not for counsel’s professional shortcomings, the result would have been different. People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255, citing Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.

We do not know if actual conflict would have occurred during the course of trial. Defendant contends that had his attorney argued at trial that his wife was less culpable than he, their defenses would have been antagonistic. We believe that as in People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, and Good, defendant is trying to establish a conflict where no actual conflict existed.

At a hearing on the motion to withdraw the plea, defendant testified that his attorney did not force him to accept the plea offer, but merely explained to him what would happen if he did not. From defendant’s testimony it is apparent that he was never explicitly told, but it was “insinuated,” that he would lose his babies. In any event, the fact that defendant pleaded guilty out of concern for his family does not constitute improper coercion. Emotional upset and family pressure do not render a guilty plea involuntary where defendant understood the rights he was waiving after being thoroughly admonished by the trial court. People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55.

As defendant’s guilty plea was voluntary, he waived all questions other than the voluntary and intelligent character of the plea. (Tollett v. Henderson (1973), 411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602.) In addition, he failed to contend in the circuit court, as he does now on appeal, that he was denied effective assistance of counsel because the same public defender represented Tonya Clover. Any issue not raised by defendant in a motion to withdraw a plea of guilty and vacate the judgment shall be deemed waived. (107 Ill. 2d R. 604(d).) Therefore, this court will not address any question of conflict which may have existed between defendant, his wife and Tonya Clover.

For the foregoing reasons, defendant failed to show an actual conflict of interest existed during the plea negotiations. We therefore find his plea to be voluntary and hereby affirm the judgment of the circuit court of Jackson County.

Affirmed.

HARRISON and RARICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY BARNES, Defendant-Appellant.
    Fifth District
    No. 5—88—0581
    Opinion filed February 22, 1990.
    Rehearing denied March 22, 1990.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor's Office, and Robert W. Mueller, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Anthony Barnes, appeals from an order of the circuit court of St. Clair County sentencing him to 40 years in the Department of Corrections. In this cause, defendant raises a single issue, pamely, whether defendant was properly sentenced to a term of imprisonment of 40 years where the trial court originally imposed a sentence of 25 years’ imprisonment, but after a short recess, vacated the 25-year sentence and instead imposed a 40-year sentence after realizing defendant’s true identity. We affirm.

The facts in this case are not in dispute. Defendant, Anthony Barnes, pleaded guilty to murder on May 30, 1984. Sentencing W3S held on July 2, 1984, in front of Judge John J. Hoban. The trial court imposed a sentence of 25 years in the Department of Corrections. A short recess was taken by the court. Following the recess, the trial judge announced that he was vacating the sentence and was instead sentencing defendant to 40 years in the Department of Corrections. The trial judge explained he had confused defendant with defendant’s brother, James Barnes, who was also involved in the murder. No post-sentencing motions were filed, nor was a direct appeal taken.

A petition for post-conviction relief was filed in February 1987. Counsel was appointed and filed an amended petition in July 1988, alleging that defense counsel was ineffective, therefore requiring a reversal. The amended petition did not address the manner in which defendant was sentenced. The petition was heard by Judge Stephen M. Kernan and ultimately denied. This is the first time that the issue of improper sentencing has been raised.

Defendant specifically argues that the trial court’s imposition of the 40-year sentence was error because the trial judge was without the power to vacate the previously ordered 25-year sentence. Section 5 — 8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(c)) provides that a court may reduce a sentence without a motion within 30 days of its imposition, but expressly proscribes an increase in a sentence. Defendant contends that the controlling factor is the oral proclamation of a sentence rather than the written sentencing order, so that even though the sentencing order states that defendant’s sentence is 40 years’ imprisonment, defendant’s sentence is actually only 25 years’ imprisonment, as was first orally imposed. The State first replies that the issue has been waived because defendant failed to move to vacate his guilty plea or to raise the issue of an improper sentence before the trial court. Assuming, arguendo, that the sentencing issue has not been waived, the State contends that the record is clear that the trial court made an error in the identity of defendant, not in the term of years imposed. We agree.

We address first the State’s waiver issue. Defendant did fail to raise the issue of an improper increase in sentence before the trial court. However, the error asserted clearly affected defendant’s fundamental right to liberty and impinged upon his right to be sentenced fairly. (People v. Redisi (1988), 172 Ill. App. 3d 1003, 1013, 527 N.E.2d 684, 691 (consideration of the defendant’s claim that he should not have been sentenced to an extended term for home invasion, absent a statutory aggravating factor, could be reviewed as plain error).) Because the issue raised by defendant affects substantial rights, we will review it as plain error. 107 Ill. 2d R. 615(a).

In a criminal proceeding, the pronouncement of the sentence is the judicial act which comprises the judgment of the court. The entry of the sentencing order is a ministerial act and is merely evidence of the sentence. (People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284.) However, in determining the sentences that have been imposed, a reviewing court may refer to the sentencing order. People v. Williams (1983), 97 Ill. 2d 252, 310, 454 N.E.2d 220, 248.

Defendant’s argument characterizes the oral pronouncement of sentence and the judgment order setting out his sentence as separate transactions so that the original oral pronouncement barred a subsequent modification by either a revised oral pronouncement or by the written judgment order. While case law does lend some support to defendant’s argument, here we find that the oral pronouncement and the written judgment were part of a continuing transaction occurring on a single day.

Defendant relies on People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283, in which the supreme court addressed the issue whether a notice of appeal filed after the oral pronouncement of a sentence but before the filing of the judgment order was timely. The Allen court held that the period of time during which the notice of appeal had to be filed commenced when the trial court orally pronounced the defendant’s sentence because the pronouncement of the sentence is a judicial act which comprises the judgment of the court, whereas the entry of the judgment order was merely ministerial. (71 Ill. 2d at 381, 375 N.E.2d at 1284.) The Allen court continued, however, that “[the] record does not present the question nor need we consider what rule would apply in the event of a discrepancy between the judgment as pronounced and the order as entered.” (71 Ill. 2d at 381-82, 375 N.E.2d at 1284.) The supreme court refused to mandate that the oral pronouncement controlled over the written judgment. Rather, in circumstances where a conflict between the report of proceedings and the common law record arises, the reviewing court must look to the record as a whole to resolve inconsistencies. People v. Tackett (1985), 130 Ill. App. 3d 347, 351, 474 N.E.2d 451, 454; People v. Jones (1977), 53 Ill. App. 3d 197, 204, 368 N.E.2d 452, 457.

A review of the record in the instant case reveals that when the trial court made the oral pronouncement of a 25-year sentence, it was under the mistaken impression that the defendant before it was James Barnes. The record indicates that after the 25-year sentence was imposed, the trial court took a brief recess after which time the following proceedings occurred:

“THE COURT [Judge Hoban]: Let the record show when the defendant Anthony Barnes was brought before the Court, the Court was under the impression it was James Barnes. That is the reason he was given the sentence of 25 years. In fact, it is marked on the docket sheet of court, James Barnes. This is Anthony Barnes, now?
MR. PORTER [defense counsel]: This is Anthony Barnes, yes, Your Honor.
THE COURT: Okay. Mr. Barnes, do you have anything you wish to say? I went through the whole rigamarole with you? DEFENDANT BARNES: No, sir.
THE COURT: The defendant, Anthony Barnes, is now before the Court, the Court vacates and sets aside the previous sentence of twenty-five years, which he mistakenly imposed upon the defendant, Anthony Barnes, thinking it was James Barnes. And is now sentencing Anthony Barnes in his own true self, true name, true person.
The Court having made an independent assessment of the presentencing investigation and the report, there is no evidence offered in aggravation or in mitigation. The defendant has been given an opportunity to make a statement in his own behalf. The Court feels that a fit and proper disposition of this matter would be to sentence the defendant into the custody of the Department of Criminal Corrections for placement in an institution of their choosing and there to stay for a period of forty years. Or until he’s otherwise discharged by virtue of law. Mit-timus to issue. Judgment is entered upon the plea of guilty, finding of the defendant’s age and sentence just imposed.
You have thirty days from today to file in this court a written motion asking me to vacate and set aside this judgment. In this motion, you shall set forth the grounds upon which you rely. Like you can put in the motion that I previously sentenced you, I want to clarify that right now, say I did it not knowing which Barnes you were. So, we will clarify that in advance. But, you can put that in there. We will have a hearing on any motion that you file. If the motion is well taken, I’ll vacate the plea of guilty, reinstate your plea of not guilty. You’ll go to trial on both charges, murder and the other charge. If I feel that the motion is not well taken, I’ll deny it, and you’d have thirty days to appeal to the Fifth District Appellate Court. That will be the order of the Court.”

Reading the record as a whole, it is clear that the trial court was under the mistaken belief that it was sentencing James Barnes rather than Anthony Barnes; therefore, the trial court’s vacation of the 25-year sentence and the imposition of the 40-year sentence not violate the express prohibition against an increase in a sentence by a trial court. (See Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1(c).) The record clearly explains that the trial court made a factual mistake as to the identity of defendant, but corrected itself almost immediately, and the written judgment made on the same date, previously found to be part of the same transaction, clears up any inconsistencies. We find defendant was properly sentenced to a term of 40 years’ imprisonment.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed.

Affirmed.

LEWIS, P.J., and HOWERTON, J., concur.