author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL HARRIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2087
    Opinion filed May 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Denise Avant, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Theodore Burtzos, Paul Gliatta, and Edward Pacer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Paul Harris, was found guilty of one count of delivery of a controlled substance, and his codefendant, Rena Wells, was found guilty of two counts of the same offense. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) Wells was sentenced to two concurrent terms of six years’ imprisonment, and she appealed to the appellate court. (People v. Wells (1989), 184 Ill. App. 3d 925, 540 N.E.2d 1070.) Defendant was sentenced to six years and one month’s imprisonment. He now appeals, contending that (1) the trial court abused its discretion in denying his motion for severance; (2) the State failed to prove that he was accountable beyond a reasonable doubt; and (3) the State made improper and prejudicial remarks during closing argument. We affirm.

Officer Andre Davis, an undercover agent for the Metropolitan Drug Enforcement Group (MEG), testified that he was involved in an undercover investigation at a forest preserve known as Kickapoo Woods. The purpose of this operation was to make a prearranged purchase of narcotics. On July 18, 1986, shortly after his arrival at the forest preserve, Officer Davis was met by codefendant Rena Wells, Harvey Harris and an unidentified male.

Officer Davis approached Harris’ car, and Harris showed him two plastic bags on his lap, which had been covered by a newspaper. Harvey Harris told Officer Davis that the bags contained cocaine. The officer opened one of the bags, field tested the contents, verified its contents as cocaine, and then gave Harvey Harris $3,600 of MEG’s funds.

Harvey Harris handed the money to codefendant Wells, who counted the stacks of $100 bills. While Wells counted the money, Officer Davis field tested the other bag and verified that it also contained cocaine.

Later that day, at about 3 p.m., Officer Davis telephoned Harvey Harris and told him that he was interested in making an additional purchase. Harvey Harris told the officer that he would meet him in the same place, in two weeks.

On July 30, 1986, Harvey Harris called Officer Davis and suggested that they meet on August 1, 1986, at 10 a.m. at the same forest preserve. Harris told the officer that he could then sell him eight ounces of cocaine.

On August 1, Officer Davis went to Kickapoo Woods with $14,000 of MEG money. At about 10:05 a.m., Harvey Harris pulled his car up next to the officer’s. Codefendant Wells was seated in the front passenger seat, and defendant was in the rear passenger seat.

According to Officer Davis, Harris asked him if he had the money, to which he responded affirmatively. Officer Davis then approached Harris’ car and, in exchange for the money, Harris told defendant to give the officer the bag. Defendant retrieved a bag, which had been next to him on the car seat, and handed it through the -window to the officer. Officer Davis described the bag as a green shopping bag, which contained a plastic ziplock bag of cocaine.

Officer Davis returned to his car, where he tested the contents of the bag. While conducting the test, he noticed that Harvey Harris and defendant were standing by his car. After determining that the bag contained cocaine, the officer gave Harvey Harris $7,000. Harvey Harris, again, gave the money to Wells and requested that she count it.

While Wells was counting the money, Officer Davis activated an electronic arrest signal. Backup agents converged on the scene, and Officer Davis announced his office. Defendant ran around the car to the rear passenger door and attempted to remove a loaded revolver from the back seat of the automobile. The revolver was just to the left of where defendant had been seated in the car. Harvey Harris, Wells and defendant were subsequently arrested.

The State presented the additional testimony of Agents John McQuinn and Lemuel Hougues. Their testimony fairly corroborates that of Officer Davis. The parties stipulated that the packet given to Officer Davis on August 1 was tested and contained 209.29 grams of 66% pure cocaine.

Harvey Harris, who is defendant’s uncle, was the sole defense witness. He testified that defendant lived with him and his wife in their home. On August 1, 1986, at about 9:30 a.m., he and defendant left the house, stopped to pick up Wells, and proceeded to Kickapoo Woods. According to Harris, neither Wells nor defendant asked, and he never told either of them, where they were going or why.

They met Officer Davis at the park. After parking his car beside Officer Davis’, Harris raised his hood because there was a little steam coming out from under it. Harris told defendant to pass him a little bag, and defendant handed it to him through the window. While Officer Davis checked the contents of the bag, he (Officer Davis) told Harris to check the amount of the money. Wells counted the money. Shortly thereafter, the other officers arrived on the scene. Harris also testified that he concealed the cocaine from both Wells and defendant.

Defendant was arrested and charged with one count of delivering a substance containing more than 30 grams of cocaine on August 1, 1986. Wells was arrested and charged with two counts of delivering a substance containing cocaine on July 18, and August 1, 1986. Harvey Harris was arrested and charged with three counts of delivering a substance containing cocaine on July 14, 18, and August 1, 1986. Harris entered a plea of guilty. Wells and defendant demanded jury trials.

Prior to trial, defendant filed a motion to sever his case from that of Wells (Ill. Rev. Stat. 1987, ch. 38, par. 114—8). He argued that evidence of the July 18, 1986, transaction involving Wells, and not him, might prejudice the jury in determining his guilt in the August 1 transaction. The State filed a motion to consolidate the cases, arguing that the activities demonstrated a comprehensive scheme.

In denying defendant’s motion to sever, the court stated that the jury would be given a limiting instruction that defendant was not involved in the July 18 transaction. At the close of the evidence, the jury found defendant guilty. Defendant now appeals.

Defendant first contends that the trial court abused its discretion in denying his motion for severance. He argues that given the overwhelming volume of evidence against Wells and the small amount of conflicting evidence against him, it was difficult for the jury to compartmentalize the evidence against the two and use it for its limited purpose.

It has long since been established that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Olinger (1986), 112 Ill. 2d 324, 345, 493 N.E.2d 579; People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329.) A defendant who does not wish to be jointly tried has the right to file a pretrial motion for severance (Ill. Rev. Stat. 1987, ch. 38, par. 114—8); however, to sustain the motion, more is required than mere apprehensions of prejudice. (Lee, 87 Ill. 2d at 186.) By his motion, the defendant must state how he would be prejudiced by a joint trial. People v. Braune (1936), 363 Ill. 551, 554, 2 N.E.2d 839.

Ruling on the motion requires that the trial court make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge developed from the proceedings. (People v. Collins (1989), 186 Ill. App. 3d 35, 40, 541 N.E.2d 1308.) It is within the sound discretion of the trial court whether to grant the motion to sever, and absent an abuse, its decision will not be disturbed on review. People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969; People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.

Traditionally in Illinois, trial courts grant motions for severance based on two common forms of prejudice. The first type occurs when a codefendant has made hearsay admissions which implicate the defendant. (People v. Daugherty, 102 Ill. 2d at 541; People v. Fort (1986), 147 Ill. App. 3d 14, 497 N.E.2d 416.) The defendant may be denied his constitutional privilege of confrontation if the codefendant’s hearsay admission is admitted against him and the defendant is unable to cross-examine the codefendant because the latter does not testify. (See People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461; see also Bruton v. United States (1968), 391 U.S. 123, 134 n.10, 20 L. Ed. 2d 476, 484 n.10, 88 S. Ct. 1620, 1626-27 n.10.) A second type of prejudice occurs when defenses of the various defendants are so antagonistic that a severance is imperative to assure a fair trial. See, e.g., People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349; Lee, 87 Ill. 2d 182, 429 N.E.2d 461; Braune, 363 Ill. 551, 2 N.E.2d 839.

Here, defendant has alleged neither of the traditional forms of prejudice; he has made only general assertions of prejudice. Relying on United States v. Sampol (D.C. Cir. 1980), 636 F.2d 621, he maintains that the overwhelming amount and venality of the evidence against his codefendant in and of itself warranted severance.

The State argues that the Illinois Supreme Court in Byron adopted the reasoning of Sampol as one part of a two-prong test. Thus, the State maintains that in addition to one of the commonly recognized forms of prejudice, a defendant needs also to demonstrate that he will be prejudiced by the nature and quantity of evidence presented. Since defendant has failed to satisfy this two-part test, severance was not required.

We disagree with the State’s analysis. The Byron court stated that the Federal courts have recognized that disparity in “ ‘the quantity and type of evidence adduced against the co-defendants[] is a vital consideration in evaluating the necessity for severance.’ ” (Byron, 116 Ill. 2d at 93, quoting United States v. Sampol (D.C. Cir. 1980), 636 F.2d 621, 646.) The court then noted that an overwhelming volume of evidence was presented as to the defendant Bean only, and in view of the antagonism between the defendants, the court could not say that the jurors fairly applied the evidence to the respective defendants. Bean, 109 Ill. 2d at 93.

We do not read Byron as creating a two-prong test. Clearly, severance may be required where, even in the absence of an overwhelming amount of evidence, the defenses are antagonistic or the right to confrontation has been infringed. The quantity of, and the corrupt influence of, the evidence is but a factor to be considered in a severance determination. However, there may well be circumstances, as in Sampol, where this factor alone could be the basis upon which severance is granted. Any set of circumstances which deprives a defendant of a fair trial is sufficient to require severance. Bean, 109 Ill. 2d at 95.

Nonetheless, defendant’s case is not helped by Sampol. In Sam-pol, the defendant was indicted on two counts of making false statements to a grand jury and one count of misprision of a felony. He was tried with two codefendants who were charged with, inter alia, conspiracy to murder a former foreign official and murder by explosives. (Sampol, 636 F.2d at 642.) Actual testimony at trial created the false impression that the defendant was involved in the conspiracy to murder (636 F.2d at 644), and the bulk of the testimony concerned the crimes of conspiracy to assassinate and murder (636 F.2d at 647). The court noted that at one point during the trial, the confusion was so great that one of the witnesses, describing a meeting with one of the codefendants, named the particular codefendant, but pointed to the defendant. The court stated:

“The amount and provocative nature of the evidence required to prove the charges against his co-defendants so exceeded and varied from that which was necessary or relevant to the charges against [the defendant] that it was unfair to him, and unrealistic to expect a jury not to be influenced by such extraneous testimony in its assessment of his guilt upon the lesser charges for which he was tried.” 636 F.2d at 647.

Such was not the case here. This was not a complicated case; there were a limited number of witnesses, and the facts were in no way confusing. We believe that the jury could properly compartmentalize the evidence against defendant and the codefendant.

Further, we find nothing in the record to even suggest that the jury might have been given the erroneous impression that defendant was involved in the July incident. We note that the trial judge, three times, admonished the jury, twice during the trial and once in its instructions, that defendant was not involved in the July delivery. We would be hard pressed to find prejudice here; thus, we conclude that the trial court did not abuse its discretion in denying defendant’s motion.

In his reply brief, defendant attempts to analogize to Bean. There the defendant Bean and codefendant Byron were tried together for a variety of crimes connected with a death. (Bean, 109 Ill. 2d at 84.) The defendant’s motion for severance was denied. (109 Ill. 2d at 87.) Counsel for the codefendant, while asserting his innocence, made incriminating statements about the defendant throughout the trial. 109 Ill. 2d at 95.

Bean is inapposite. The record before us is devoid of any evidence which even remotely suggests that the codefendant accused defendant of the delivery while professing her own innocence. The antagonistic defense, present in Bean, simply did not occur here.

Defendant next contends that the State failed to prove beyond a reasonable doubt that he was accountable for Harvey Harris’ delivery of a controlled substance. He argues that the evidence against him was irrelevant and contradictory. Precluding this evidence, the only evidence of accountability would have been his presence at the scene. Since mere presence is insufficient to support a finding of accountability, the verdict should be reversed. People v. Marquis (1974), 24 Ill. App. 3d 653, 321 N.E.2d 480.

Under our accountability statute, one is legally responsible for the acts of another if (1) he elicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) this participation took place before or during the commission of the offense; and (3) there was a concurrent, specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 5—2.) “[0]ne may aid or abet without actively participating by an overt act; and if the evidence shows that the defendant was present at the commission of a crime without disapproving or opposing it, it is permissible for the trier of fact to consider this conduct, in connection with other circumstances, so as to support the conclusion that the defendant assented to the commission of a crime, lending to it his countenance and approval, and was thereby aiding and abetting therein.” People v. Burke (1985), 136 Ill. App. 3d 593, 601, 483 N.E.2d 674.

When presented with a challenge to the sufficiency to the evidence, the relevant inquiry is whether the evidence, viewed in a light most favorable to the State, would support any rational trier of fact in finding that the essential elements of the crimes had been proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Defendant makes much of the fact that he was not able to see inside the bag that he handed to Officer Davis. Therefore, he argues, he could not have been assisting in the delivery. This reasoning does not necessarily follow. The fact that he might not have been able to see inside does not serve to negate the possibility of his prior knowledge of the contents of the bag. Further, the jury was not bound to believe the testimony of Harris that defendant did not know the purpose of the meeting with Officer Davis. People v. Hanna (1983), 120 Ill. App. 3d 602, 613, 457 N.E.2d 1352.

Defendant next points to the fact that while Officer Davis testified at trial about defendant going to the car to get the gun, that fact was included in neither his police report, nor in his testimony at the preliminary hearing. As defendant correctly notes, the general rule is that it is for the jury, as trier of fact, to resolve any factual disputes, to assess the credibility of the witnesses, and to determine the sufficiency of the evidence for a verdict of guilty. (People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331.) This court will not substitute its judgment unless the evidence is so unsatisfactory or improbable that a reasonable doubt remains as to defendant’s guilt. Ellis, 74 Ill. 2d at 496.

In his testimony, Officer Davis admitted that the facts concerning defendant running to the car to get the gun had been omitted; however, he further stated that the report was no more than a summary of the events. We note that the police report did include the fact that the gun was seized from the rear passenger seat of the car, and there is no dispute that defendant had been seated there. Here, the jury apparently found the officer’s explanation on the omitted fact to be satisfactory. We cannot disagree.

We believe that defendant’s conduct could support a finding of accountability. In addition to his presence at the scene, there was evidence that he unquestioningly handed the packaged cocaine to the undercover agent, witnessed the exchange of money for the package, stood, without protest, outside the officer’s car as the officer tested the substance, then, upon being made aware that the agent had signalled for his arrest, ran to retrieve a gun. We do not find this evidence to be so improbable as to create a reasonable doubt. The verdict here is sufficiently supported by the evidence.

Defendant’s third and final contention is that his conviction should be reversed because of improper closing argument made by the State. During cross-examination, Harvey Harris stated that he did not tell anyone of defendant’s innocence until the day of defendant’s trial. On redirect examination, he stated that he asserted his fifth amendment right against self-incrimination and remained silent about defendant’s innocence on the advice of counsel. Defendant maintains that since Harris’ credibility was crucial to his defense he was substantially prejudiced by the State’s comments.

During closing argument, the State made the following remarks:

“Harvey Harris, the one they desperately want you to believe was arrested on August 1 and yesterday for the first time, tells you what happened the day after his arrest. He does not plead and say they didn’t have anything to do with it. He waits ten months.”

Defendant’s objection to the remarks was overruled.

The State asserts, and defendant admits, that the claimed prejudicial statements were not included in his post-trial motion as grounds for a new trial. As such, the argument has been waived for purposes of our review. (People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Alternatively, the State maintains that the comments were not in reference to Harris’ post-arrest silence as it pertained to his (Harvey Harris’) guilt or innocence, but only as it related to defendant’s alibi.

Notwithstanding the fact that the issue has been waived, defendant urges that since there was an objection made at trial, the evidence against him was not overwhelming, and a right against self-incrimination was involved, we should consider the comment under the plain error doctrine.

In People v. Godsey (1978), 74 Ill. 2d 64, 383 N.E.2d 988, a case upon which defendant relies, the court stated that before a witness may be questioned about his silence, a proper foundation indicating an inconsistency between such silence and the testimony at trial must be laid. The refusal of a witness to testify or speak because of the exercise of self-incrimination rights may lead a jury to imply that the witness was engaged in illegal activities, which can all too easily be transferred over to the defendant. (United States v. Rubin (5th Cir. 1977), 559 F.2d 975, 983.) Here, the State did not demonstrate any inconsistency between the witness’ trial testimony and his silence; thus, the admission of such testimony was an evidentiary error.

However, before such error can be the basis for reversal, the defendant must show that it could have contributed to his conviction. (Godsey, 74 Ill. 2d 64, 383 N.E.2d 988; People v. Sullivan (1978), 72 Ill. 2d 36, 44, 377 N.E.2d 17.) The proper standard of review for a finding of plain error is whether the evidence of defendant’s guilt is so closely balanced and the alleged errors of such magnitude that they denied the defendant a fair trial. People v. Boclair (1989), 129 Ill. 2d 458, 476, 544 N.E.2d 715; People v. Lucas (1981), 88 Ill. 2d 245, 430 N.E.2d 1091.

We do not believe that defendant was substantially prejudiced by the evidence of Harris’ silence. Even absent this evidence, there was sufficient other competent evidence upon which conviction could have been based. Moreover, Harris’ credibility had already been impeached by his testimony on direct examination of his prior conviction for delivery of drugs. Thus, we conclude that the error was harmless beyond a reasonable doubt.

For the foregoing reasons we affirm the judgment of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOANNE W. JOHNS et al., Plaintiffs and Petitioners-Appellees, v. GEORGEANN KLECAN, Defendant (Nicholas B. Blase et al., Respondents-Appellants).
    First District (3rd Division)
    No. 1—88—1568
    Opinion filed May 16, 1990.

      Sidney Z. Karasik, of Chicago, for appellants.
    David K. Kremin, of William B. Meyers & Associates, of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Joanne W. Johns and Elvera Spears, plaintiffs in a personal injury action against Georgeann Klecan, filed a petition for adjudication of attorney’s lien. The petition sought the denial of any attorney fees to respondents, Nicholas B. Blase and Fred Lambruschi, in connection with their representation of petitioners in the suit against Klecan. After an evidentiary hearing, the trial court granted the petition. Respondents appeal.

Petitioners were involved in an automobile accident with Klecan on April 21, 1985. Shortly thereafter, petitioners retained Blase to represent them against Klecan pursuant to a contingency fee contract. Upon visiting Blase’s law office for that purpose, one or both petitioners were interviewed by Leon Prandini, a paralegal, who recorded all the pertinent information regarding the accident. Thereafter, Prandini did some preliminary work on the case such as, but not limited to, corresponding with petitioners, their and Klecan’s insurers and with petitioners’ physicians. Specifically, Prandini sent Klecan’s insurers a notice of attorney’s lien dated April 30, 1985. Between the time petitioners retained Blase and July 20, 1985, Prandini spoke with petitioner Johns “many times” by telephone. Prandini estimated that Johns would call two to three times per week. After this preliminary work on the file, Prandini turned the file over to Blase, who began negotiations with Klecan’s insurer.

Blase’s negotiations resulted in settlement offers in October 1985 of $10,800 to Spears and $3,000 to Johns. Blase instructed Prandini to communicate the offers to petitioners along with his recommendation that petitioners reject them. Petitioners did so. As a result, Prandini told petitioners that suit would be filed in the case. Petitioners admitted being so advised, but denied that Prandini had advised them that Lambruschi would be filing the suit on their behalf. Prandini further claimed that petitioners did not object. Also in October, Prandini corresponded further with Klecan’s insurer and with petitioners’ physician. Blase’s law firm sent petitioners’ file to Lambruschi in December. Prandini did not work on petitioners’ case thereafter. He estimated spending 18 to 20 hours on petitioners’ case in toto. Blase testified that in noncontingent fee cases he charged an hourly rate of $100 for services performed by his office.

After receiving petitioners’ file on December 26, reviewing it and dictating a complaint, Lambruschi filed suit against Klecan on petitioners’ behalf on December 30, 1985. On January 2, 1986, Lambruschi claimed, but petitioners could not recall, that he communicated a second offer from Klecan’s insurer to petitioners. Prandini claimed, but petitioners also could not recall, that he sent them copies of the complaint filed by Lambruschi on March 14,1986, per their request.

Instead, petitioners claimed being first advised of that fact in March by a letter from Lambruschi. Due to their dissatisfaction with Blase’s representation and his transfer of their case to Lambruschi, petitioners decided to discharge them as their attorneys. Johns called Prandini on March 24 and advised him of that fact. Upon being advised by Prandini that she would have to discharge Blase and Lambruschi in writing, Johns sent Blase a letter to that effect the same day. Although Prandini acknowledged receipt of the letter when Johns called on April 1 or 2, he informed her that she needed to send him some “legal forms” to properly discharge the attorneys.

Under a contingency fee contract dated April 11, 1986, petitioners retained the law firm of William B. Meyers & Associates to prosecute their claims against Klecan. By a letter dated the same day, petitioners again advised Blase that they were discharging him and advised him of their retention of new legal counsel. Blase received this letter on April 24, 1986, as an attachment to a letter from Meyers dated April 22. The letter sought Blase’s execution of a substitution of attorneys, all material relevant to petitioners’ case and an itemization of costs to be reimbursed to Blase or Lambruschi. Both Blase and Lambruschi admitted receiving the Meyers letter by April 24. However, Blase claimed that it was the first notice he had received of his discharge by petitioners.

By letter dated April 30, 1986, Lambruschi advised Klecan of service upon her, as a nonresident, by means of service of summons upon the Illinois Secretary of State on April 17. Lambruschi also enclosed a copy of the summons and an affidavit of compliance, all as required under the Illinois Vehicle Code for such substitute service (Ill. Rev. Stat. 1985, ch. 95½, par. 10—301). Sometime in May, Klecan’s insurer made another settlement offer to petitioners through Lambruschi. Lambruschi communicated the offer to petitioners and recommended its rejection. On June 2 and 16, 1986, Meyers wrote Blase again requesting the return of the substitution of attorney forms and an itemization of expenses. After petitioners’ action was dismissed for want of prosecution on July 2, 1986, Lambruschi obtained a vacatur of that dismissal at the request of Meyers. Meyers filed the substitution of attorney on September 19. Lambruschi estimated that he spent 8 to 10 hours working on petitioners’ case. Lambruschi also testified that defense lawyers in the personal injury cases he prosecuted charged $200 to $250 per hour.

On June 3, 1987, the petitioners settled their claims against Klecan in exchange for the payment of $20,000 to Spears and $3,000 to Johns. Petitioners filed the original petition to adjudicate the attorney’s lien on October 7,1987.

The trial court expressed two bases for denying fees to respondents. It found, first, that they had failed to serve a notice of attorney’s lien upon Klecan, as statutorily required to enforce their attorney’s lien. (Ill. Rev. Stat. 1985, ch. 13, par. 14.) Secondly, the trial court found that, although respondents would have been entitled to a quantum meruit recovery had they proved “services rendered and reasonable hourly rates” therefor by competent evidence, respondents failed to do so. In concluding that respondents’ evidence was inadequate, the trial court expressly relied upon Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424. It also relied on an Illinois Bar Journal article entitled, Closen & Tobin, The Contingent Contingency Fee Arrangement: Compensation of the Contingency Fee Attorney Discharged by the Client, 76 Ill. B.J. 916 (1987).

Opinion

On appeal, respondents contend that the trial court erred in relying upon Kaiser in denying a quantum meruit recovery because Kaiser involved the recovery pursuant to a contract of reasonable legal fees charged on an hourly basis rather than a contingent fee arrangement or a quantum meruit recovery of legal fees. Respondents note the rationale underlying the doctrine of quantum meruit, viz., that one who benefits from another’s services should pay the reasonable value thereof. Given that rationale, respondents assert, the trial court should have instead compared the services performed by them and Myers for petitioners without any regard as to the time spent in performing them and then allocated the one-third portion of the settlement funds available for attorney fees between them accordingly. In support, respondents cite Phelps v. Elgin, Joliet & Eastern Ry. Co. (1966), 70 Ill. App. 2d 89, 217 N.E.2d 519, and Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531.

Petitioners respond that the trial court properly relied upon Kaiser. They so conclude because the same policy considerations which underlie the rule in contingent fee cases, that a discharged attorney is entitled only to fees calculated on a quantum meruit basis (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969), apply with equal force to retainer contracts for a predetermined amount (Simon v. Auler (1987), 155 Ill. App. 3d 1000, 508 N.E.2d 1102).

Preliminarily, we must note that a trial court’s decision whether or not to award attorney fees is a matter within its discretion and will not be disturbed absent an abuse of that discretion. (See, e.g., Lurie v. Canadian Javelin, Ltd. (1982), 93 Ill. 2d 231, 443 N.E.2d 592.) That having been noted, we cannot agree with petitioners that Simon justifies the trial court’s reliance on Kaiser to deny respondents any fees whatsoever for representing them. As we read Rhoades, the "policy considerations” to which Simon refers are that: (1) a client has the right, under Illinois law, to discharge his attorney at any time, with or without cause; (2) requiring the client to pay the attorney discharged, without cause, the full legal fees contracted for would render that right meaningless since the client would have to establish cause for discharge to exercise it; (3) allowing attorneys who did little or no work prior to discharge to recover the full contract fees would raise the possibility of excessive fees; and (4) a client is a consumer of legal services and Illinois has an established policy of protecting all consumers. Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 227-29, 399 N.E.2d 969.

We see no reason why, as petitioners implicitly argue, the policy considerations which justify limiting the recovery of legal fees after discharge to a quantum meruit recovery also necessarily support or require extending to contingency fee cases the rule established in Kaiser that no recovery of reasonable hourly fees is allowed pursuant to a contract unless the attorneys present detailed time records. The only policy consideration which, arguably, does so is the concern for the possibility of excessive fees. However, we believe that trial courts can adequately guard against that possibility without requiring that contingent fee attorneys account for the time they spend on a case with the same specificity and exactitude of hourly fee attorneys.

Moreover, the time and labor required in a case is but one factor to be considered in determining a reasonable attorney fee under the doctrine of quantum meruit. The other factors are the attorney’s skill and standing, the nature of the cause and the novelty and difficulty of the subject matter, the degree of responsibility in managing the cause, the usual and customary charge in the community and the benefits resulting to the client. (Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86.) Since the time and labor required is but one factor in the quantum meruit equation, we do not believe that the failure to account for the time spent on a case in exacting detail should, alone, preclude any recovery of fees. At most, that failure militates in favor of a reduced fee.

We also note that, contrary to petitioners’ assertion, it cannot be said that respondents adduced absolutely no evidence as to the the services rendered petitioners during the time which they spent on petitioners’ case. To the contrary, respondents did present such evidence. Having done so, the proper question before the court was whether that evidence was sufficient to support an award of fees.

In Ashby v. Price (1983), 112 Ill. App. 3d 114, 445 N.E.2d 438, a plaintiff in a personal injury case had retained two attorneys on a contingency basis. The attorneys did not file any pleadings in the case and did not obtain any recovery for the plaintiff by way of settlement or otherwise. However, they did discuss possible settlements with him. In contesting a quantum meruit award of fees to one of the attorneys, Dye, the plaintiff asserted that Dye failed to establish the reasonableness of his hourly fee and to specify the services rendered. In rejecting that contention, the court stated:

“[Ejvidence in the form of the time record for Dye’s office, along with Dye’s testimony, indicated that 7.9 hours of work had been expended in preparing this *** case. Time was spent in conferences, interviews, research, obtaining medical bills and doctors’ reportfs], telephone calls, letters and contact with the insurance adjuster. Sufficient specifics were presented with respect to the nature of the services performed by *** Dye on Ashby’s behalf. The record also indicates that Dye was an experienced attorney in the area and that his customary hourly fee was $50. Counsel for *** Ashby did not successfully contradict that evidence, nor seek to challenge, as unreasonable, the hourly fee.” (Ashby, 112 Ill. App. 3d at 122.)

In then rejecting the contention that the plaintiff had not benefitted from Dye’s services, the court further stated:

“It is sufficient to note that it would be inherently unfair to the attorney to permit his client to dismiss him, without justifiable cause, after the attorney had spent time preparing the case, and then to deny the attorney any compensation at all, because he had not settled or successfully tried the case prior to the discharge. What ultimate benefit *** Dye would have achieved is an unanswerable question, because by discharging Dye, Ashby prevented him from taking the matter to fruition. So far as this record shows, the lack of benefit is attributable to the discharge. Benefit is but one consideration, in any event, and in light of the work done by Dye and his associate] prior to discharge, and in light of the timing of the discharge, we are not persuaded that the lack of benefit should prevent Dye from recovering for the services rendered. *** [T]he court was correct in concluding that Dye was entitled to compensation for his services, at the rate of $50 per hour.” Ashby, 112 Ill. App. 3d at 122-23.

Inasmuch as Ashby was a personal injury contingent fee case, we believe that it, rather than Kaiser, provides the proper standard of proof to be met by attorneys in such cases to obtain quantum meruit fees after discharge. Respondents argue that they adduced sufficient evidence to warrant a comparison of the services they and attorney Meyers rendered to petitioners and an apportionment of the attorney fee portion of the recovery. However, we believe that Ashby establishes the better approach to be taken in cases of this type. Determining the amount of total time spent on cases in performing legitimate services for the client and then multiplying that time by a reasonable hourly rate, as in Ashby, is, we believe, the best method to determine the reasonable value of a discharged attorney’s services. That approach avoids the problems inherent in the comparison/apportionment approach of cases such as Phelps v. Elgin, Joliet & Eastern Ry. Co. (1966), 70 Ill. App. 2d 89, 217 N.E.2d 519, and Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531. It is much easier for a trial court to undertake the Ashby approach than to place a value on the perhaps widely varying services performed by attorneys vis-a-vis the client’s ultimate recovery.

In view of Ashby, we conclude respondents adduced sufficient evidence to support an award of a reasonable fee in this case. Prandini, Blase’s paralegal, testified in detail regarding the services he performed for petitioners. He also estimated spending 18 to 20 hours on their case. In contrast to Prandini, Blase failed to specify in detail the services he personally performed for petitioners beyond engaging in settlement negotiations with Klecan’s insurer, although he did state that he charged $100 per hour for work done by his office in noncontingent fee cases. Blase’s testimony was inadequate to justify an award of fees for the time he personally spent on petitioners’ case. However, Prandini’s testimony was sufficient to justify an award to Blase for Prandini’s time. Moreover, there is sufficient Illinois authority for an award of fees to Blase for Prandini’s time. See Fiorito v. Jones (1978), 72 Ill. 2d 73, 89, 377 N.E.2d 1019; Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 276, 465 N.E.2d 139; Merchandise National Bank v. Scanlon (1980), 86 Ill. App. 3d 719, 727, 408 N.E.2d 248.

Lambruschi’s testimony was also sufficient, under Ashby, to support an award of fees to him based on an hourly wage. He testified that upon receiving petitioners’ file from Blase’s office, he reviewed it, dictated a complaint and filed the suit on petitioners’ behalf against Klecan. He also obtained a special process server to serve summons upon Klecan and, when that proved unsuccessful, he obtained service of summons through the Secretary of State. It is also undisputed that he communicated a settlement offer from Klecan’s insurer to petitioners in May 1986. Lastly, Lambruschi obtained a vacatur of a dismissal for want of prosecution of petitioners’ action. In addition to the evidence of the services performed on petitioners’ behalf, Lambruschi testified that he spent 8 to 10 hours on their case and, by comparison to personal injury defense lawyers, valued his time at $200 to $250 per hour. Lambruschi’s testimony was thus sufficient to meet the Ashby standard as to the time and labor element of a quantum meruit fee award.

The foregoing evidence provided a sufficient basis from which the trial court could determine reasonable fees for Prandini’s and Lambruschi’s time. The failure to do so was error. In this regard, we note that a trial court is not limited to the evidence presented in arriving at a reasonable fee but may also use the knowledge it has acquired in the discharge of professional duties to value legal services rendered. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 411, 484 N.E.2d 890; Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 376, 419 N.E.2d 924.) Having concluded that respondents failed to adduce any evidence regarding the time spent on petitioners’ case, the trial court never reached the issue of the reasonableness of respondents’ valuation of their services and, thus, did not apply its own knowledge thereto. On remand, it should take into consideration whatever evidence the parties adduce on the valuation of Prandini’s and Lambruschi’s services and apply its own knowledge thereto to arrive at a reasonable fee award to respondents.

Kaiser does not compel a contrary conclusion. In Kaiser, a lessor sought from its lessees its legal fees incurred in litigation with them under a lease providing that the lessees would pay such fees. The lessor’s attorneys sought payment, at bottom, on an hourly basis. In passing upon the trial court’s action on the petition, the appellate court first noted that, even when they are sought pursuant to a contract, only attorney fees which are reasonable will be allowed. (Kaiser, 164 Ill. App. 3d at 983.) The court then held that a petition for fees must specify the services performed, who performed them, the time expended thereon and the hourly rate therefor and that a petitioner must present “detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated.” Kaiser, 164 Ill. App. 3d at 984.

This case, like Kaiser, ultimately involves the calculation of reasonable attorney fees. That similarity notwithstanding, we find Kaiser so inapposite to this case as to be inapplicable here. As we have earlier indicated, Kaiser is inapposite because it did not involve either a contingent fee arrangement or a request for a quantum meruit recovery of fees in a contingent fee setting. Moreover, in determining what were reasonable attorney fees in the setting before it, the Kaiser court did not rely upon any personal injury contingent fee cases.

Rather, Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019, Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1 and Board of Education v. County of Lake (1987), 156 Ill. App. 3d 1064, 509 N.E.2d 1088, all involved petitions for attorney fees in class action lawsuits, in which the fees are normally calculated under the “lodestar” method. That calculation involves, inter alia, the multiplication of an hourly rate by the number of hours expended on the case. (Heckmann v. Hospital Service Corp. (1982), 104 Ill. App. 3d 728, 432 N.E.2d 891.) In addition, Ealy v. Peddy (1985), 138 Ill. App. 3d 397, 485 N.E.2d 1182, involved a claim for fees in a marriage dissolution proceeding, in which contingent fees are prohibited (107 Ill. 2d R. 2—106(c)(4)). We find the differences between the calculation of fees in such cases and in personal injury cases so marked as to make such cases totally inapposite in the calculation of a quantum meruit recovery of fees in the latter type cases. For these reasons, the trial court erred in relying upon Kaiser to deny fees to respondents.

In addition, the fact that the attorney in Ashby was discharged without cause does not make Ashby inapplicable here, where respondents were, at least arguably, discharged with cause. Such attorneys are entitled, like those discharged without cause, to a quantum meruit recovery of fees. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1001, 406 N.E.2d 101, citing Rhoades, 78 Ill. 2d 217, 399 N.E.2d 969.) Parenthetically, the Tobias court’s observation that time records were necessary for the award of fees to the discharged attorney, not his successor, because only the former was limited to a reasonable fee on quantum meruit basis (Tobias, 84 Ill. App. 3d at 1002), does not compel a conclusion contrary to that which we have reached. There is no indication in Tobias as to, nor did the court specify, the detail required in such time records. Therefore, we will not construe Tobias as requiring time records as detailed as those required in Kaiser.

Moreover, we believe that the Illinois Bar Journal article upon which the trial court also relied in denying fees to respondents suffers from the same infirmity as Kaiser. That is, other than Tobias, it relies upon Illinois cases not involving contingency fees in personal injury cases to support its conclusion that “[bjecause the time expended by attorneys is such a crucial element in determining a reasonable fee, it is essential that all attorneys, including contingency fee attorneys, keep detailed time records of their work.” (Closen & Tobin, The Contingent Contingency Fee Arrangement: Compensation of the Contingency Fee Attorney Discharged by the Client, 76 Ill. B.J. 916, 920 (1987).) Specifically, In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890, involved a petition for fees in a probate proceeding contracted for on an hourly basis. In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594, involved a petition for fees in a marriage dissolution proceeding also contracted for on an hourly basis.

Additionally, we cannot agree with the conclusion in Kaiser, cited by petitioners, that the additional factors articulated in Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 711, 355 N.E.2d 86, for determining a reasonable fee under quantum meruit are to be considered only after detailed time records are presented to a trial court. (Kaiser, 164 Ill. App. 3d at 984.) Rather, evidence relating to the time and labor element of that calculation, if sufficient, is to be considered along with any evidence relating to the additional factors. However, we do agree with petitioners that attorney Meyers was not limited to a quantum meruit recovery of fees, as respondents contend. Rather, under Tobias, he is entitled to the balance of the portion of the settlement proceeds set aside for the payment of attorney remaining after the payment of any fees to respondents. (Tobias, 84 Ill. App. 3d at 1002.) As petitioners note, although they fail to concede the same fact in relying upon Kaiser, the case relied upon by respondents for that argument, Chicago Junction Ry. Co. v. Leitch (1919), 215 Ill. App. 67, did not involve a contingent fee contract.

Finally, respondents’ failure to present any expert testimony regarding the reasonableness of the value of their services on an hourly basis did not, as petitioners contend, provide an additional basis to deny them any fees whatsoever. While it may be proper for an attorney seeking fees to present expert testimony on the issue of what is a reasonable fee (see, e.g., In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 480 N.E.2d 513), he is not required to do so as a matter of law.

In summary, we hold that an attorney working on a contingency basis in a personal injury case is not required to present evidence as detailed as that required in Kaiser to establish his right to a reasonable fee under quantum meruit in case of discharge. Where he presents sufficient evidence of the time and labor which he spent on his former client’s case, that evidence must be considered along with all the other relevant factors in deciding upon his entitlement to any fees for services rendered.

For all of the foregoing reasons, the order denying any fees to respondents is reversed and this cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.

        In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947, which petitioners cite in their brief, is inapposite for the same reason.


author: PRESIDING JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RORY CENTER, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1591
    Opinion filed May 17, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, Francis N. Scescke, and Kenneth W. Goff, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of burglary and sentenced to a term of 15 years’ imprisonment. On appeal, he contends (1) that he was denied a fair trial by (a) the admission of hearsay testimony which insinuated previous criminal activity by him and (b) the prosecutor’s repeated references to a co-offender as a “juvenile”; and (2) that his sentence was excessive.

At trial, Officer Klodnicki testified that on November 8, 1986, he and his partner, Officer Gajewski, responded to a call of a burglary in progress at a laundromat on 1561k North Cicero Avenue in Chicago. When they arrived in their squadrol, they looked through the front window into the laundromat, which was fully lit, and saw the arm of an individual hanging down from a false ceiling. The individual had a screwdriver in his hand and was attempting to pry open a coin box on one of the machines. Gajewski remained at the window while he (Klodnicki) walked around to the north end of the building. As he turned the corner of the building, he saw two males lowering themselves from the roof. He radioed this information to other police units in the area, identified himself as a police officer and ordered the men to stop. Both men turned, looked at him and then ran off across the vacant lot next to the building. They were approximately 75 feet in front of him as he chased them. A squad car arrived and drove across the lot and stopped just behind the two men. The officers exited their vehicle and began chasing the two men as they ran into an alley, which was illuminated by streetlights. Klodnicki terminated his pursuit of the men and returned to the laundromat. Upon entering, he saw that a portion of the ceiling had been knocked out. Gajewski climbed atop a machine and shone his flashlight into the hole in the ceiling, where they found a young man hiding. When they brought him down and searched him, they recovered a screwdriver with a bent blade and tar on it. He was later identified as Terrence Hopkins, a juvenile. As they exited the building with Hopkins, they saw the other two officers escorting defendant to the squadrol. Defendant, like Hopkins, had tar on his hands and jacket.

Officer Schulz testified that he and his partner, Officer Dennis Walsh, were in their marked squad car a few blocks from the laundromat when they received a call of a burglary in progress there. As they arrived on the scene, they saw two men come down from the roof and run away, with Officer Klodnicki in pursuit. They drove around the side of the building and across the adjoining vacant lot. When they came within approximately 10 feet of the men, they exited their vehicle and began chasing the men. Although the lighting conditions were very good, they momentarily lost sight of the men when they crossed the street and ran into a gangway. They split up and proceeded to search the area gangways and porches. Officer Schulz found defendant crouched on his side on the floor of a porch which was surrounded by a short brick wall. When he brought defendant to his feet, he noticed that defendant’s heartbeat was rapid, he was breathing heavily and he had tar on his hands. As he escorted defendant back to the scene, he saw the other officer placing another individual into the squadrol. The second man seen running from the building was never apprehended.

Constantine Lee, the owner of the laundromat, testified, through a Korean interpreter, that he allowed a friend, Vernon Walker, to sleep in a back room of the laundromat on the night of the burglary. Before leaving the laundromat, at approximately 10:30 p.m., he locked all the doors. In response to a call from Walker, he returned to the laundromat at approximately 1:10 a.m. where he was met by police officers. He identified photographs of the scene and of the damage caused to the ceiling and the exhaust pipe on the roof.

Vernon Walker testified that he was awakened by noise which sounded like someone banging on pipes. He then heard a voice saying “This is how we came in here before,” and, when he looked inside the laundromat, he saw a person hanging down from a hole in the ceiling trying to pry open a coin box on one of the machines. After calling the police, he looked out the back window and saw two men running from the building, but he could not identify either man. When the police arrived, he indicated to them that a person (Hopkins) was hiding in the ceiling. He described Hopkins as appearing to be 16 or 17 years old.

Detective Richard Zeluga testified that he interviewed Hopkins and defendant together at the police station. After being informed of the charges against him and advised of his rights, defendant agreed to give a statement. Defendant said that he was with Hopkins when they met a man known as “Little Pete,” who told them he knew of a place where they could break in easily and get some quick cash. The three of them climbed onto the roof of the laundromat and pried the vent cap open. In doing so, they had to remove some tar around the base of the pipe. While they were lowering Hopkins in through the ceiling, they saw a police car. Defendant and Little Pete then jumped off the roof and ran away. He was apprehended when one of the officers found him hiding on a porch.

The State then rested its case, whereupon defendant moved for a directed verdict. The trial court denied the motion as to the burglary charge but granted the motion on the charge of criminal damage to property for lack of sufficient evidence relating to the value of the damage to the roof. No evidence was presented on defense. The jury found defendant guilty of burglary, and defendant’s post-trial motion for a new trial was denied. Following a hearing, the trial court found defendant eligible for Class X offender sentencing and imposed a sentence of 15 years’ imprisonment. This appeal followed.

Opinion

Defendant first contends that he was denied a fair trial by the admission of Vernon Walker’s testimony that he heard a voice saying “This is how we came in here before.” Defendant argues that the statement was hearsay and that it prejudiced him by insinuating that he had also participated in a prior burglary of the laundromat.

The record reveals that defendant did not object to the testimony at trial nor was this issue raised in his post-trial motion. Issues not raised at the trial court level are deemed waived for purposes of review. People v. Wade (1989), 131 Ill. 2d 370, 546 N.E.2d 553.

Moreover, in our view the testimony at issue was not inadmissible hearsay. As defendant correctly observes, “hearsay *** is *** an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter.” (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) A reading of the entire trial transcript indicates that the statement was not offered to prove that defendant had participated in a prior burglary of the laundromat or even that a prior burglary had occurred. Rather, it was offered as part of the sequence of events related by Walker in describing what made him aware that a burglary was taking place, that there was more than one participant and their means of entry. Nothing in Walker’s testimony identified defendant as the speaker so as to imply that he had previously burglarized the building. In fact, the jury reasonably could have believed that the statement was made by one of the other offenders to defendant, which would lead to the conclusion that he had not been involved in any prior burglary of the building. (See People v. Billingsley (1989), 184 Ill. App. 3d 142, 539 N.E.2d 1302.) Before invoking the plain error exception, as defendant urges us to do, it should be determined whether error occurred at all. (People v. Wade (1989), 131 Ill. 2d 370, 546 N.E.2d 553.) Since we do not agree that the testimony was inadmissible hearsay, the plain error rule is inapplicable here.

Further, it is well settled that the purposes of the plain error rule are to correct serious injustices and to preserve the integrity of the judicial process. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) The criterion for application of the plain error.rule in criminal cases is whether the evidence is so closely balanced or the error was of such magnitude as to have affected substantial rights and denied the defendant a fair trial. (People v. Young (1989), 128 Ill. 2d 1.) Thus, even if we were to agree with defendant’s assertion that the statement was hearsay which should have been excluded, in light of the evidence against defendant, the sufficiency of which he does not challenge on appeal, any error in its admission was harmless beyond a reasonable doubt. See People v. Gaines (1982), 88 Ill. 2d 342, 430 N.E.2d 1046.

Defendant next contends that repeated references to Terrence Hopkins as a “juvenile” during the trial were so prejudicial as to deny him a fair trial. He argues that Hopkins’ age was irrelevant and that the numerous references to his youth were used to inflame the jury by intimating that defendant “was a bad character with a propensity to commit crimes” and that he “exploited and corrupted youngsters in his criminal schemes.”

Defendant acknowledges that the issue was not properly preserved for review. He once again maintains, however, that the waiver rule should not apply because the cumulative effect of these referenees, together with the admission of Walker’s statement insinuating his involvement in a previous burglary improperly, suggested that he was a bad character with a propensity to commit criminal acts and resulted in substantial prejudice to him. He therefore urges us to apply the plain error exception to the waiver rule. We have already enunciated the purpose and criterion for application of the plain error doctrine and need not restate those principles here. It suffices to say that we have considered those principles and, for the reasons enunciated, we find that invocation of the plain error doctrine is not appropriate in this case.

It is fundamental that the admission of evidence is within the sound discretion of the trial court, whose rulings will not be disturbed absent an abuse of discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) It is equally fundamental that a defendant who fails to bring alleged errors to the attention of the trial court by way of objections and in his post-trial motion so as to give the trial court the opportunity to prevent or correct any alleged errors at trial should not gain the advantage of obtaining a reversal through that failure to act, whether such failure is intentional or inadvertent. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Wilson (1985), 139 Ill. App. 3d 726, 487 N.E.2d 1015.

Defendant cites 18 instances at trial when Hopkins’ youth was mentioned either by the prosecutor or in the testimony of witnesses. A review of the record also establishes, however, that defense counsel only once objected, when Hopkins was initially referred to as a “youth”; that counsel immediately withdrew the objection; and that defendant failed to raise this issue in his post-trial motion. In addition, the record reveals that in challenging the sufficiency of the evidence during closing argument, defense counsel noted that the screwdriver used in the commission of the burglary was not found in defendant’s possession but, rather, “was taken off a juvenile that was caught inside.” Clearly, defendant has waived any alleged error relating to the references to Hopkins’ age.

Moreover, even absent defendant’s waiver we do not believe that the references to Hopkins’ age were designed to inflame the jury or that they had any such inflammatory effect. Defendant himself was only 23 years old at the time of the offense. In view of defendant’s own youthful age, we do not believe that the references to Hopkins being a juvenile could have so inflamed the jury as to cause it to convict defendant on the grounds that he had a bad character and criminal nature and that he exploited and corrupted youngsters in his criminal schemes.

To the contrary, we believe that the jury’s verdict was the only reasonable one it could have returned based on the evidence adduced at trial. As noted earlier, that evidence included testimony that defendant was found hiding on a porch a very short distance from the location of the burglary; that when apprehended, he was breathing heavily, his heartbeat was rapid and he had tar on his hands and clothes; and that, following his arrest, he confessed his complicity in the crime. We find no basis for reversal of defendant’s conviction.

Defendant’s final contention is that his 15-year sentence is excessive. He does not dispute the trial court’s finding that, by reason of two prior Class 2 felony convictions, he was eligible for sentencing as a Class X offender. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3).) He maintains, however, that the trial court did not give adequate consideration to the numerous factors in mitigation and as a result imposed an excessively harsh sentence.

It is correct, as the State argues, that the sentencing judge is in the best position to consider matters relating to sentencing determinations and is vested with wide discretion in making a reasoned judgment as to the penalty appropriate to the particular circumstances of each case. (People v. O’Neal (1988), 125 Ill. 2d 291, 531 N.E.2d 366.) Thus, the judge’s ultimate sentencing decision is entitled to substantial weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) However, as the supreme court noted in People v. O’Neal (1988), 125 Ill. 2d 291, that discretion is not unfettered. A reviewing court has the power and authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) to reduce a sentence imposed by the trial court where it is found to have constituted an abuse of discretion. As the O’Neal court stated, “the mere fact that the trial court has a superior opportunity to make a determination concerning final disposition and punishment of a defendant does not imply that a particular sentence imposed is always just and equitable.” O’Neal, 125 Ill. 2d at 298.

It is axiomatic that an abuse of discretion occurs where the sentence exceeds the limits prescribed by statute. (E.g., People v. Rodarte (1989), 190 Ill. App. 3d 992, 547 N.E.2d 1256.) However, an abuse of discretion may be found even if the sentence is within the statutory limitations if such sentence is greatly at variance with the purpose and spirit of the law. People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606; People v. Gibbs (1977), 49 Ill. App. 3d 644, 364 N.E.2d 491.

The Illinois Constitution requires that penalties be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. (Ill. Const. 1970, art. I, §11.) This constitutional mandate calls for the balancing of the retributive and rehabilitative purposes of punishment. (People v. Newell (1990), 196 Ill. App. 3d 373; People v. Streiter (1990), 193 Ill. App. 3d 443, 550 N.E.2d 244; People v. Gibbs (1977), 49 Ill. App. 3d 644, 531 N.E.2d 366.) This balancing process requires careful consideration of all factors in aggravation and mitigation, including, inter alia, the defendant’s age, demeanor, habits, mentality, credibility, criminal history, general moral character, social environment, and education, as well as the nature and circumstances of the crime and of defendant’s conduct in the commission of it. E.g., People v. O’Neal (1988), 125 Ill. 2d 291, 532 N.E.2d 366; People v. Newell, 196 Ill. App. 3d 373; People v. Streiter (1990), 193 Ill. App. 3d 443, 550 N.E.2d 244.

Moreover, the Illinois Supreme Court has stated that sound public policy demands that sentences be varied in accordance with the particular circumstances of the specific crime committed. Certain types of criminal conduct may warrant different penalties even though the offenses technically are punishable under the same statute. Thus, while the statutory classification of a crime determines the range of permissible sentences, the severity of the sentence within that range depends largely upon the degree of harm caused. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.

Burglary is a Class 2 felony (Ill. Rev. Stat. 1987, ch. 38, par. 19—1(b)). As such, it is punishable by three to seven years’ imprisonment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1.) An extended term of 7 to 14 years may be imposed where “a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—3.2(b)(1).) Additionally, the Unified Code of Corrections provides that “[wjhen a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois *** such defendant shall be sentenced as a Class X offender.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(8).) The range of permissible sentences under this provision is 6 to 30 years.

At the sentencing hearing the State presented defendant’s criminal record containing two prior Class 2 felony convictions. The first conviction, at age 19, was for the robbery of a bicycle from a nine-year-old boy. Defendant’s second conviction, six months later, was for a burglary which, according to the statements by the prosecutor, involved the same laundromat for which he was convicted in this case. The State presented no other factors in aggravation.

Following arguments by counsel, the trial judge discussed the Class X sentencing provision, stating that it was not limited to conduct of an outrageous nature but was enacted for purposes of deterrence of crime, and that it was applicable in the instant case. The judge then stated, without enumeration or elaboration, that he had considered all the factors raised in argument and in the presentence investigation report and imposed a sentence of 15 years.

A review of the defendant’s personal history revealed that he had reached the age of 23 just a few days before the offense; he had been raised in a normal home environment and maintained stable ties with his family; he graduated from high school when he was 18 years old; he was employed as a binder at a printing company for two years prior to this offense; he had been accepted into a firefighter-paramedic training program with the Markham fire department, and at the time of sentencing had completed four weeks of that training; and he denied using drugs or alcohol.

Regarding the circumstances of the offense, the evidence showed that the place of the burglary was a laundromat which had been closed for the night; that defendant’s role in the offense appeared to be primarily that of a lookout on the roof of the laundromat; that no proceeds were obtained in the burglary; and that neither this offense nor the two prior offenses which rendered him eligible for Class X sentencing involved or resulted in any bodily harm to anyone.

Applying the principles discussed earlier, we are constrained to agree with defendant that this sentence is excessive. We believe that in the particular circumstances of this case, the court did not give adequate weight to the mitigating factors or properly balance the retributive and rehabilitative purposes of incarceration in imposing sentence. We are mindful that defendant was eligible for either extended-term or Class X sentencing, and we do not minimize the seriousness of the crime of burglary. However, the 15-year term imposed is nine years more than the minimum Class X sentence (six years) and one year more than the maximum extended sentence for burglary (14 years). By way of further comparison, we note that defendant’s sentence is equal to the maximum term for voluntary manslaughter, a Class 1 felony; and that other Class 1 and Class 2 felonies which render a defendant eligible for Class X sentencing by reason of recidivism include arson, robbery, aggravated criminal sexual abuse (Class 2), criminal sexual assault, residential burglary, aggravated kidnapping other than for ransom and, as noted above, voluntary manslaughter (Class 1).

In summary, we do not believe that defendant's 15-year sentence for a foiled Class 2 burglary which was enhanced to Class X status by reason of his previous convictions for Class 2 burglary and the robbery of a bicycle is in conformance with the spirit or the purpose of the law. Defendant’s personal background indicates that he possesses the capability and potential for rehabilitation. Whether he will return to society to live a useful, law-abiding life is a decision only he can make. However, we do not believe that incarceration for the period imposed in this case is one which furthers the objectives of rehabilitation and restoration to useful citizenship.

Consequently, pursuant to the authority granted us in Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), we hereby reduce defendant’s sentence to seven years.

The judgment of the trial court is affirmed as modified.

Affirmed as modified.

JIGANTI and JOHNSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY THOMAS, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—2924
    Opinion filed May 17, 1990.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Howard D. Weisman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Following a bench trial, defendant Anthony Thomas was convicted of concealing a fugitive (Ill. Rev. Stat. 1985, ch. 38, par. 31—5) and sentenced to one year of imprisonment. Because we conclude that the evidence was insufficient to prove defendant guilty of this offense beyond a reasonable doubt, we reverse.

The following pertinent evidence was presented at defendant’s trial. On December 15, 1986, defendant was questioned by Detective Thomas Ptak of the Chicago police department at an area police station regarding the homicide of Eric Williams (Williams), which had occurred a day earlier. At this interview, defendant told Detective Ptak that on the day of the incident, defendant and Eric Williams (Williams) had an argument outside a tavern. Defendant told the detective that at some point during this argument, defendant made a phone call. Defendant stated that at some point after he made this telephone call, Williams was shot outside the tavern. Defendant said that he was standing beside Williams at the time of the shooting. Defendant told Detective Ptak that the assailant’s first name was Ron. Defendant described the shooter as approximately 6 feet tall and weighing approximately 200 pounds. Defendant viewed mugshot books, but could not identify the assailant. Defendant was not given Miranda warnings during the questioning, because Detective Ptak did not consider defendant to be either under arrest, in custodial interrogation, or a suspect in the shooting, since other eyewitnesses had told the detective that defendant had not shot Williams. Detective Ptak testified that at this interview, defendant “admitted it did not look good for him [defendant].”

The following evening, Detective Ptak spoke to defendant on the street near defendant’s home. Defendant told the detective that defendant was “still trying to find out who had shot” Williams. Approximately a week later, defendant was again interviewed by Detective Ptak at an area police station regarding the homicide. He was not given Miranda warnings, because Detective Ptak had not placed defendant under arrest, did not consider the setting to be one of custodial interrogation, and did not consider defendant to be a suspect in the shooting. During the course of the interview, defendant told Detective Ptak that defendant’s first cousin, Ronald Batson (Batson), had shot Williams upon Batson’s arrival at the scene following defendants telephone call to Batson. Defendant gave the officer Batson’s address and phone number. Defendant told Detective Ptak that defendant had not provided this additional information earlier because defendant was afraid Batson would involve defendant in the homicide. Batson, who matched the physical description given by defendant and whose photograph was not included in the mugshot books viewed by defendant during earlier interviews with the detective, was later arrested for the homicide.

Based upon this evidence, the trial court found defendant guilty of concealing a fugitive and sentenced him to one year of imprisonment. Defendant appeals.

Defendant asserts that the evidence was insufficient to prove him guilty beyond a reasonable doubt. The offense of concealing or aiding a fugitive is defined as follows:

“Every person not standing in the relation of husband, wife, parent, child, brother or sister to the offender, who, with intent to prevent the apprehension of the offender, conceals his knowledge that an offense has been committed or harbors, aids or conceals the offender, commits a Class 4 felony.” Ill. Rev. Stat. 1985, ch. 38, par. 31—5.

Illinois cases interpreting this statutory provision have held that, in order to “conceal” an offender, a person must take “an affirmative act in connection with the concealment.” (People v. Donelson (1977), 45 Ill. App. 3d 609, 612, 359 N.E.2d 1225.) Thus, it has been held that the term “conceals” “requires more than a failure to come forward with information.” (Donelson, 45 Ill. App. 3d at 610.) It has also been held that concealment of a homicidal death does not occur where a person fails to disclose information and, “when interrogated [by police], denie[s] knowledge of the death.” Donelson, 45 Ill. App. 3d at 611, discussing People v. Vath (1976), 38 Ill. App. 3d 389, 347 N.E.2d 813.

Based upon this precedent, defendant’s initial failure to disclose to Detective Ptak the full scope of defendant’s knowledge of the assailant’s identity did not amount to concealment of a fugitive under Illinois law. Defendant was not obligated, under Illinois law, to come forward with the identity of the offender. (Donelson, 45 Ill. App. 3d 609, 359 N.E.2d 1225.) Defendant also was not obligated, under Illinois law, to admit to this knowledge upon interrogation by the police, and could have denied any knowledge whatsoever of the identity of the shooter. (Vath, 38 Ill. App. 3d 389, 347 N.E.2d 813.) A denial of any knowledge of the identity of the assailant would not have amounted to the “affirmative act” required under Illinois law for the offense of concealing a fugitive. (See Vath, 38 Ill. App. 3d 389, 347 N.E.2d 813.) Consequently, when defendant gave Detective Ptak incomplete information regarding the identity of the person whom defendant had seen shoot Williams, defendant did not undertake an affirmative act necessary for the offense of concealing a fugitive. Accordingly, the record does not establish sufficient evidence to sustain defendant’s conviction of concealing a fugitive.

The State argues that defendant’s failure to provide Detective Ptak with the full identity of the assailant should fall within the scope of section 31—5, because defendant’s partial disclosure misled the police to believe that the person who committed the homicide was not a person defendant knew personally and was not a relative of defendant. There is no evidence in the record to support the State’s claim that Detective Ptak, or other police officers investigating the homicide, were actually so misled by defendant’s partial disclosure of the identity of the assailant. In addition, the pertinent Illinois decisions have based their holdings upon an affirmative act of concealing the fugitive. Because the State’s evidence in the instant cause does not establish that defendant undertook an affirmative act to conceal the person who shot Williams, we reverse his conviction and sentence.

In light of this disposition, we need not and do not address the remaining claims made by defendant on appeal.

Reversed.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE LINN

text:
    SUSAN OLSON, Adm’r of the Estate of Howard Olson, Deceased, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION et al., Defendants-Appellees (The Celotex Corporation et al., Defendants).—JOSEPH O’MALLEY, Plaintiff-Appellant, v. FIBREBOARD CORPORATION et al., Defendants-Appellees (The Flintkote Company et al., Defendants).
    First District (4th Division)
    Nos. 1—89—2341, 1—89—2342 cons.
    Opinion filed May 17, 1990.

      Cooney & Conway, of Chicago (James R. Hopkinson, William R. Fahey, and Michael D. Mulvihill, of counsel), for appellants.
    Kelley, Drye & Warren and Schiff, Hardin & Waite, both of Chicago (John Dames, Julian Solotorovsky, Carolyn Quinn, Robert H. Riley, and Carol R. Prygroski, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

The estate of Howard Olson and Joseph O’Malley (plaintiffs) filed lawsuits to recover damages resulting from Olson’s and O’Malley’s prolonged exposure to asbestos products in the course of their employment. Defendants are several corporations which designed, processed, manufactured, distributed or sold products containing asbestos. In this appeal, Owens-Illinois, Inc., Fibreboard Corporation, Pittsburgh Coming Corporation, and Owens-Corning Fiberglas have filed briefs in support of the trial court’s dismissal of plaintiffs’ complaint pursuant to section 13—213 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13-213).

Plaintiffs raise three issues on appeal: (1) The statute of repose should not be applied to asbestos-related injuries; (2) if the statute is applicable to such injuries, it must be limited to those that occurred after January 1, 1979 (the effective date of section 13—213); and (3) even if the statute of repose is applicable to asbestos-related injuries occurring before that date, plaintiffs have eight years in which to discover their injuries and file suit, bringing these plaintiffs within the pertinent time limitations.

We affirm the trial court’s dismissal of the actions.

Background

Howard Olson was exposed to asbestos products from 1938 until 1974, according to the wrongful death and survival action that Susan Olson, administrator of his estate, filed on January 10, 1986. She seeks damages against certain defendants under theories of strict liability and negligence. Likewise, Joseph O’Malley was exposed to asbestos products from 1948 to 1972. He filed a complaint in strict liability and negligence against certain defendants on December 30,1986.

The allegations and legal theories of the two plaintiffs are substantially the same. Defendants designed, processed, manufactured, sold and distributed the asbestos products to which plaintiffs were exposed during the course of their employment by various Illinois companies. The strict liability counts alleged that the asbestos products were unreasonably dangerous and defective in that they lacked proper warnings of the dangers of asbestos and lacked proper instruction for the handling of the products.

Defendants filed motions for summary judgment as to the strict liability counts, pursuant to the product liability statute of repose in section 13—213 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 13—213(b).) Plaintiffs filed their response and the court heard oral argument. The judge granted summary judgment in favor of defendants, expressing his view that the law appeared unfair but that he was bound by decisional law which favors the position of defendants, rather than plaintiffs.

Opinion

Before reaching the central issue regarding the scope of section 13—213 and its application to the facts of this case, we address plaintiffs’ threshold issue: Should the product liability statute of repose even apply to asbestos-related injuries?

The major reason for not applying the statute, according to plaintiffs, is that asbestos-related diseases have long latency periods and they generally cannot be discovered within the limitations period of section 13—213, rendering asbestos victims without a remedy in strict liability.

The product liability statute of repose states, in pertinent part:

“(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.” Ill. Rev. Stat. 1987, ch. 110, par. 13—213(b).
“(d) Notwithstanding the provisions of subsection (b) and paragraph (2) of subsection (c) if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred.” Ill. Rev. Stat. 1987, ch. 110, par. 13—213(d).

Plaintiffs distinguish asbestos-related injury from the more common product liability actions in which a plaintiff who is injured by a defective product immediately realizes the injury. In such cases, the statute of repose is easy to apply. With asbestos-related injuries, however, the plaintiff may be unable to discover his or her injury for many years because of the latency period of asbestos-related illnesses. Accordingly, plaintiffs argue that we should construe section 13—213 in such a way as to exempt asbestos products from those included in the reach of the statute of repose.

The primary authority they rely on to support their contention is a recent decision of the Indiana Supreme Court. In Covalt v. Carey Canada, Inc. (Ind. 1989), 543 N.E.2d 382, the Indiana court construed its product liability statute relating to time limitations for filing suit and concluded that its statute would not be applied to injuries caused by asbestos or similar products.

In Covalt, the plaintiff was exposed to asbestos products between 1963 and 1971. In 1986, plaintiff was diagnosed as having asbestosis and lung cancer, and brought suit against various manufacturers of the asbestos products. The court held that the 10-year limitation period in the Indiana statute should not apply because the latency period between exposure and the actual manifestation of the disease is so great that few if any persons suffering from asbestos-related disease could ever maintain a strict liability action. The court noted that asbestos is as dangerous to the human body when manufactured as it will be years later. In contrast, many products are safe as manufactured and delivered but may become dangerous and defective over time due to use and abuse. 543 N.E.2d at 385.

Defendants contend that Covalt is irrelevant to the interpretation of the Illinois statute because the two jurisdictions have differently worded statutes and Illinois has a line of decisions that give the Illinois statute a history that the Indiana statute apparently lacks.

We agree that Covalt is not, ultimately, persuasive under our own precedents. Also, the Indiana statute of repose includes negligence-based product liability actions, which the Illinois statute does not.

On the question of whether the Illinois statute applies to asbestos-related injuries we must answer in the affirmative. Our courts have implicitly held that section 13—213 applies to all strict liability claims involving products, including asbestos products. (See Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 484, 490 N.E.2d 675, 678-79; Blazek v. Nicolet, Inc. (1988), 173 Ill. App. 3d 324, 325-26, 527 N.E.2d 568, 569.) The statute has also been applied to bar a claim for a DES-related injury, another situation in which the disease resulting from exposure to the product has a long latency period. Zimmerman v. Abbott Laboratories, Inc. (1989), 189 Ill. App. 3d 744, 545 N.E.2d 547.

Principles of statutory construction and legislative intent further support the conclusion that the statute was meant to cover strict liability claims involving “any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979.” “ ‘[Pjroduct’ means any tangible object or goods distributed in commerce ***.” (Ill. Rev. Stat. 1987, ch. 110, pars. 13—213(g), (a)(2), respectively.) The statute expressly includes illnesses or disease that result from an unreasonably dangerous product. (Ill. Rev. Stat. 1987, ch. 110, par. 13—214(a)(3).) On its face, the statute applies to asbestos products and related illnesses. Moreover, defendants cite to legislative publications showing that labor groups and others contributed to the discussion that the lawmakers undertook in drafting the legislation. Apparently, the specific problem of asbestos injuries was brought to the attention of the legislature, as was the fact that the statute would cut off some claims before they could accrue. (See Illinois House of Representatives Judiciary I Subcommittee on Product Liability, Report and Recommendation, Part II, at 7, 79; Journal of Illinois General Assembly (May 25, 1978), at 121 and (May 26, 1978), at 183-84.) Accordingly, we cannot simply carve out an exception to the applicability of our statute, despite the legitimate concern that the impact of the statute burdens some classes of plaintiffs more harshly than others. We can hardly deny that such result appears unfair, from the viewpoint of those plaintiffs barred from bringing strict liability actions. We are not empowered, however, to redraft legislation that has been vigorously debated and necessarily subjected to a difficult balance of competing interests. We conclude that there is no reasoned basis for this court to deviate from the language of the statute, legislative intent, and decisional law in order to exempt asbestos-related injuries from the reach of section 13—213.

Plaintiffs next argue that, even if the statute applies to asbestos-related injuries, it only applies to those occurring after January 1, 1979, the effective date of the statute. They do not cite persuasive authority in support of this proposition, however, and in fact the express terms of the statute contradict this position. Subsection 13—213(g) applies the limitation to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered into the stream of commerce prior to, on, or after that date. (Ill. Rev. Stat. 1987, ch. 110, par. 13—213(g).) An asbestos-related claim accrues upon its discovery. (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864.) Since plaintiffs’ exposure (injury) occurred decades earlier but did not result in diagnosable injury (accrue) until after the January 1979 date, the statute expressly applies to the pending case.

The Illinois Supreme Court has considered the applicability of section 13—213 to an asbestos-related claim. In Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675, the plaintiff was exposed to asbestos in 1942 through 1945 but did not discover the resulting illness and file suit until approximately three years after the effective date of section 13—213. Therefore, the statute by its terms cut off the Costello plaintiff’s inchoate cause of action before it accrued. The court held, however, that the plaintiff’s cause of action in strict liability was not barred by section 13—213 because common law principles of fairness against immediate application of changes in existing law give plaintiffs a “reasonable” amount of time after the effective date of the new law in which to file suit. The suit was filed within three years of the date of the statute and two years of discovery of the injury. The court accordingly held that the action was timely filed. The court did not, however, define the outer limits of what a reasonable time period would be under section 13—213, despite the concurring opinion’s suggestion that the majority “implicitly” held that the eight-year period of repose in the statute was reasonable.

At least two appellate court decisions have since held that approximately seven years is not a reasonable time after the effective date of the statute in which to file a strict liability action involving injuries with long latency periods. Blazek v. Nicolet, Inc. (1988), 173 Ill. App. 3d 324, 527 N.E.2d 568 (asbestos); Zimmerman v. Abbott Laboratories, Inc. (1989), 189 Ill. App. 3d 744, 545 N.E.2d 547 (DES).

In Blazek the court noted that the plaintiff, who was exposed to asbestos products in 1951 and 1952, had an inchoate cause of action from the time of his exposure to the time of his discovery of the resulting injury, a form of cancer. He learned he had cancer in November 1983 and died in September 1984. In September 1985 his representative filed suit, within the two-year discovery period of the statute. The passage of approximately seven years from the effective date of section 13—213 to the discovery and filing of the action, however, was deemed not “reasonable” under Costello and existing law.

In Zimmerman the court reached a similar result in a case involving DES-related injury. The plaintiff discovered her injury approximately 30 years after her mother had taken the drug during pregnancy. As in Blazek and as in the instant case, plaintiff asked the court to allow eight years from the effective date of section 13—213 in which to file. The Zimmerman court, however, declined to adopt the eight-year period, and plaintiff’s cause of action was held to be barred.

We acknowledge the difficulties in determining what is or is not “reasonable” under the Costello rationale. To date three years is expressly reasonable, but seven is not. Had the majority in Costello agreed with that portion of the concurring opinion which suggested that the eight-year period in subsection 13—213(d) would become the proper measure of what is reasonable, we could accept plaintiffs’ contention without further analysis. That is not the law, however, as the Costello majority decision, Blazek, and Zimmerman establish. We have no principled basis from which to depart from those decisions on this issue. Accordingly, we must reject plaintiff’s invitation to reinterpret the Costello majority’s rationale.

Plaintiff’s final argument restates the preceding issue, casting it in terms of statutory construction. In essence, plaintiffs look to the language of section 13—213(d) which, in their opinion, gives an “outer limit” of eight years in which to discover the injury and bring a strict liability action. Again they cite the special concurring opinion in Costello, which implied that the majority intended for the eight-year period in the statute to equate with the “reasonable” period in which to file after the effective date of the statute. They also cite Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408, and Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, two cases involving the statute of repose applicable to medical malpractice actions. The counterpoint medical practice statute is section 13—212 of the Code of Civil Procedure, which provides a two-year period in which to discover an injury arising out of patient care, but states that “in no event shall such action be brought more than 4 years” after the date on which the alleged act or occurrence leading to the injury occurred. Ill. Rev. Stat. 1987, ch. 110, par. 13-212(a).

In Moore, the plaintiffs were injured before the effective date of the statute of repose, but did not discover their injuries and file suit until after its enactment. As the supreme court would later find in Costello, in Moore the court held that the statute of repose in issue should be given prospective application to the extent that a reasonable time should be given to previously injured plaintiffs whose causes of action would not ripen until after the effective date of the statute of repose. The majority remanded the case for a determination of whether plaintiffs’ lawsuit, filed within four years of the passage of section 13—312, was timely as being filed within a “reasonable” time. A concurring opinion stated that no matter how many years prior a person had been injured, that person had four years from the effective date of the statute to discover his or her injury and bring the action.

In Mega, the plaintiffs were injured before the effective date of section 13—212, but did not discover their injuries and file suit until more than four years after the statute of repose had become effective. In holding that their claims were time barred, the majority agreed with the concurring opinion in Moore that the four-year period in the statute equated with the reasonable period in which to discover and file suit after the statute’s enactment. Justice Clark’s dissent in Mega argued that the plaintiffs were left without a remedy and that such a result violated the Illinois Constitution.

The varying opinions cited reveal legitimate differences of opinion among judges as to the best approach for mitigating the harshness of statutes of repose during the transitional period after their enactment. Plaintiffs would have us interpret the Mega majority opinion with the special concurrences in Moore and Costello, to come up with a construction in which the eight-year period in section 13—213 equates with what is a “reasonable” time under common law principles for filing actions after the effective dates of statutes changing limitation periods. To do this we would not only expand the majority’s ruling in Costello, but totally ignore the reasoning and holdings of Blazek and Zimmerman. Accordingly, we reject plaintiffs’ position.

The judgment of the trial court is affirmed.

McMORROW, P.J., and JIGANTI, J., concur.

      That is the possible effect of a statute of repose, which is intended to terminate liability after a defined period, regardless of a plaintiff’s inability to discover his claim within the time given. Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422-23, 490 N.E.2d 665.