text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOLYNN M. AULTMAN, Defendant-Appellant.
    Fourth District
    No. 4—92—0407
    Opinion filed November 19, 1992.

      D.J. Walsh, of Johnson, Frank, Frederick & Walsh, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Jolynn M. Aultman was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501(a)(2)). She appeals from the Champaign County circuit court’s denial of her petition to rescind her statutory summary suspension of her driver’s license (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1). She argues the trial judge erred because the arresting officer failed to provide the statutory motorist’s warning or to request that she submit to a blood, breath, or urine test. We disagree and affirm.

Howard Michael Kearn, a Village of Fisher police officer, testified at defendant’s hearing. Keam testified he stopped defendant’s vehicle at approximately 10:20 p.m. on March 1, 1992. The vehicle had turned onto Route 136 and was travelling in the wrong traffic lane for approximately 150 feet. Kearn activated his emergency equipment to pull over defendant’s vehicle. When defendant exited her vehicle, Kearn observed she was unsteady and had a strong smell of alcohol on her breath. He also observed, initially hidden by a coat which he asked defendant’s passenger to remove, a 12 pack of beer bottles with 2 open bottles half consumed.

After defendant’s poor performance on two field sobriety tests, Kearn placed her under arrest for DUI. According to Keam, defendant had no difficulty understanding the directions and requests which he provided to her before her arrest. However, from the time she was placed under arrest, and throughout Kearn’s remaining contact with defendant, she hurled verbal abuse at him continually. When he radioed his dispatcher to report the arrest, he had to repeat his communication because it was drowned by defendant’s screams and loud vulgarity.

Defendant persisted in hurling vulgarities at Keam while he tried to learn from her whom he could call to pick her vehicle up rather than requiring it be towed. Because defendant responded only with screaming vulgarities rather than information, Kearn had defendant’s vehicle towed.

Kearn and defendant travelled approximately 25 miles to the sheriff’s department to process her arrest. Defendant continued to scream during the entire transport. While en route, defendant asked Kearn to stop the vehicle so she could urinate alongside the road. Kearn refused to stop the vehicle. When they arrived at the station, Kearn told defendant she could urinate as soon as she was searched. Before defendant was searched she urinated on herself.

Kearn explained to defendant she must listen to what he was going to read to her. He intended to read the standard warning to motorists. (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).) Defendant continued to hurl insults at Kearn and to scream while Kearn tried at least twice to read the warnings to her. Defendant screamed louder the further Kearn read. During each attempt to read the warnings, Kearn did not reach the portion informing defendant of the consequences of submitting or refusing to submit to the intoxication tests.

On Kearn’s second or third attempt to read the warnings to defendant, he told her if she continued to be nonattentive he would have no choice but to consider her actions as a refusal. Kearn did not provide defendant with a personal copy of the warnings. When defendant’s actions continued, Kearn told defendant her actions were viewed as a refusal.

Kearn’s additional contact with defendant was again met with a tirade. He attempted to explain the procedures defendant faced. Over defendant’s tirade, Kearn read to her the portion of the notice of statutory suspension necessary to inform her of the consequences of her summary suspension. (Ill. Rev. Stat. 1991, ch. 95½, par. 11— 501.1(c).) He did not ask defendant to submit to a breath test.

On cross-examination Kearn explained it was impossible to read the relevant warnings over defendant’s screaming. At the close of the hearing the trial judge denied defendant’s request for rescission of her summary suspension. (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).) He concluded defendant, by her actions, tried to defeat the reading of the statutory warnings.

Defendant initially argues her actions did not relieve Kearn of his statutory obligation to provide the summary suspension warnings to her either by reading them or by providing her a copy of them. She also argues Kearn was obligated to ask her to submit to the breath test. The State contends defendant’s affirmative acts prevented Kearn from being able to provide the warnings and constituted a refusal on defendant’s part to submit to the breath test.

Although no implied consent warnings were provided to defendant, and she was not asked to submit to further testing, the trial judge properly rejected her request for rescission of her summary suspension. Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).

Section 11—501.1(a) of the Illinois Vehicle Code (Code) provides:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests *** for the purpose of determining the alcohol, other drug, or combination thereof content of such person’s blood if arrested ***.” Ill. Rev. Stat. 1991, ch. 95½, par. 11-501.1(a).

Section 11—501.1(c) of the Code states:

“A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle as provided in Section 6—208.1 of this Code. The person shall also be warned by the law enforcement officer that if the person submits to the test or tests provided in paragraph (a) of this Section and the alcohol concentration in such person’s blood or breath is 0.10 or greater *** a statutory summary suspension of such person’s privilege to operate a motor vehicle, as provided in Sections 6—208.1 and 11—501.1 of this Code will, be imposed.” Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).

Although the statute requires the warnings be provided to an individual arrested for DUI, and that defendant submit to further intoxication testing, when an officer’s efforts to comply with the law are completely thwarted by a defendant’s refusal to cooperate, the officer need not provide the warnings or further inquire about defendant’s decision whether to submit to intoxication testing. Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).

The statutory summary suspension procedures were enacted primarily to protect highway travellers and to evaluate whether motor vehicle drivers are intoxicated. (Koss v. Slater (1987), 116 Ill. 2d 389, 395, 507 N.E.2d 826, 829; People v. Doty (1987), 164 Ill. App. 3d 53, 56, 517 N.E.2d 338, 340.) Courts consistently construe section 11—501.1 of the Code liberally to accomplish its purpose of promptly removing impaired drivers from our highways. See Doty, 164 Ill. App. 3d at 56, 517 N.E.2d at 341; People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168.

Defendant relies on rulings which have concluded the warnings must be provided to a driver apprehended for DUI. No case cited by defendant, however, addressed whether an arresting officer must provide the warnings when doing so would clearly be futile. Rather, the issues addressed were whether the warnings provided were sufficient or whether warnings were provided in instances where the defendant’s actions were not obstructive to the officer’s attempt to provide the warnings.

In People v. Znaniecki (1989), 181 Ill. App. 3d 389, 392, 537 N.E.2d 16, 17, the third district reversed the circuit court’s denial of defendant’s petition to rescind his summary suspension because the arresting officer warned defendant only of the consequences of submitting to a test which revealed a blood-alcohol content of more than .10, but not what could occur if defendant refused to submit to testing.

Similarly, this district concluded a defendant was improperly warned where the arresting officer informed him his refusal to submit to testing would result in a six-month suspension. Defendant actually faced a minimum two-year suspension because he had a previous DUI conviction. People v. McCollum (1991), 210 Ill. App. 3d 11, 12, 568 N.E.2d 493, 494.

Although the second district in People v. Gafford (1991), 218 Ill. App. 3d 492, 497, 578 N.E.2d 583, 586, reasoned that failure to provide the requisite warnings was grounds for rescinding a statutory summary suspension, the issue the court addressed there was whether the arresting officer provided the warnings despite defendant’s testimony he was not warned.

Finally, defendant relies on dicta in a past ruling by this court. In In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 925, 510 N.E.2d 614, 619, we noted the warning-to-motorists form accurately outlines the statutory warnings. We did so to indicate, where circumstances are different than in this case, evidence at the rescission hearing should include testimony to establish the officer provided the warnings to defendant. Again, however, defendant in Trainor had not obstructed the officer’s attempts to provide the warnings..

Our previous ruling in Doty (164 Ill. App. 3d at 55, 517 N.E.2d at 340) provides guidance in determining an officer’s duty to provide the required warnings when defendant’s conduct obstructs the arresting officer’s attempts to provide the warnings. In Doty, after defendant was stopped and informed she was under arrest, she fled from the scene before the arresting officer provided her the statutory summary suspension warnings. Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c).

This court viewed defendant’s action in Doty as analogous to instances where defendant’s conduct was viewed as an effective refusal to submit to testing. Effective refusal has been found where the driver’s intoxication at the time he is asked to submit to the test causes him to be unable to later recall if he was asked to submit to the test. (People v. Solzak (1984), 126 Ill. App. 3d 119, 123, 466 N.E.2d 1201, 1204.) This is true also where defendant claims his disorientation brought about by a motor accident caused him to unknowingly refuse to submit to further testing. People v. Kirby (1986), 145 Ill. App. 3d 144, 146, 495 N.E.2d 656, 658.

Refusal was also found where defendant consented to submit to the test but does not fully cooperate with its administration (People v. Schuberth (1983), 115 Ill. App. 3d 302, 305, 450 N.E.2d 459, 462), the driver’s intoxication makes it impossible for him or her to comprehend the request to submit to intoxication testing (People v. Carlyle (1985), 130 Ill. App. 3d 205, 211, 474 N.E.2d 9, 13), and where the driver’s intoxication causes him or her to fail to properly take the test despite the officer’s repeated requests (People v. Doherty (1986), 144 Ill. App. 3d 400, 403-04, 494 N.E.2d 933, 936).

Defendant contends exceptions to the summary suspension proceedings (Ill. Rev. Stat. 1991, ch. 95½, par. 11—501.1(c)) should not be engrafted lightly. We agree, but do not view her case as one in which the purpose of the proceedings would be furthered by rescinding her summary suspension. Defendant’s deliberate actions interfered in the officer’s efforts to provide the proper warnings to her and request her to submit to intoxication testing. Her actions made any further attempts by Kearn to do so futile. We will not reward defendant for her conduct.

In all but the most egregious circumstances, an arresting officer should provide the statutory warnings either by reading them to defendant or by providing defendant a written copy. Officer Kearn was continually harangued throughout the 25-mile drive to the sheriff’s station. He tried to elicit cooperation from defendant. He sought to save her towing costs by locating someone to pick up her vehicle. He explained to defendant that she could urinate as soon as she was searched.

Kearn’s concern and cooperation with defendant did nothing to allay defendant’s screaming and stream of invective. She appeared to understand the procedures before her arrest. The evidence suggests she was sufficiently in control of her faculties to understand the ramifications of her actions. Kearn attempted to explain to her on at least two occasions that her actions would be viewed as a refusal to submit to further testing.

Under the circumstances presented in this case, defendant’s conduct thwarted the officer’s efforts to follow statutory mandates and provide the suspected intoxicated motorist the summary suspension warnings and request that she submit to further testing. Defendant’s conduct was a constructive refusal to submit to the tests. The trial judge properly denied her request for rescission of her summary suspension.

Affirmed.

STEIGMANN and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHOEN L. RUSSELL, Defendant-Appellant.
    Fourth District
    No. 4—92—0353
    Opinion filed November 19, 1992.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Shoen Russell pleaded guilty in the Champaign County circuit court to indirect criminal contempt arising out of his violation of a condition of conditional discharge. He was sentenced to 180 days in jail with no credit for time served and no good-time credit. He argues the trial judge abused his discretion by imposing this sentence when the underlying offense carried only a 30-day maximum term. Defendant also contends the trial judge lacked authority to deny him credit for good behavior while incarcerated. We find the imposition of the 180-day term was not error, but defendant has a right to credit for good behavior while serving his jail term.

On March 23, 1992, a petition for indirect criminal contempt of court was filed against defendant alleging he violated a court order by entering the Champaign County public housing premises after being expressly prohibited from doing so as a term of his conditional discharge for the offense of criminal trespass to land. (Ill. Rev. Stat. 1991, ch. 38, par. 21—3.) Defendant had previously agreed to this provision of his conditional discharge. He admitted this allegation.

A sentencing hearing took place in April 1992. The trial judge had previously admonished defendant his failure to appear at the hearing could result in the hearing being conducted in his absence. Defendant failed to appear and the court proceeded in his absence despite defense counsel’s objection. The State noted an additional occasion when defendant failed to appear in court and the judge had issued a warrant for his arrest.

Defendant’s presentence investigation revealed his illegal conduct began in 1985 when he was a juvenile and he committed a theft. In 1987 he was unsuccessfully discharged from probation. In 1988 he committed an aggravated battery, and in 1990 his probation was revoked and he was sentenced to the Department of Corrections. Here, the State recommended the judge impose the maximum sentence of six months in jail for the criminal contempt.

Defense counsel suggested the State had been unfair in charging defendant with indirect criminal contempt rather than with a violation of his conditional discharge because a revocation of his conditional discharge could have resulted in a maximum sentence of 30 days in jail. Similarly, he noted defendant could only have been confined for 30 days if the State charged him anew with criminal trespass. Under either scenario, defense counsel contended defendant would have been eligible for day-for-day good time and may therefore have had to serve only 15 days of the possible 30-day term. Defense counsel also argued the State was seeking a twelvefold enhancement of the punishment defendant faced if conditional discharge was revoked or he was charged anew. Counsel conceded the trial judge could impose a six-month contempt sentence without day-for-day good-time credit, but recommended the trial judge impose a 45-day jail term.

The trial judge indicated the State has discretion in deciding what charges to bring against a defendant. Defendant had been provided a copy of the order prohibiting him from entering public housing property in Champaign. The trial judge had earlier emphasized to defendant the importance of obeying the imposed restrictions. Defendant provided no legitimate reason for again entering public housing premises. At his conditional discharge hearing, defendant assured the trial judge he would have no difficulty complying with this agreed-upon restriction.

Less than 60 days later defendant entered public housing on two separate dates. He failed to appear at a probation meeting and then did not appear for his sentencing. The trial judge concluded defendant had no respect for the judicial system. After considering defendant’s history, character, and background, the judge imposed the maximum six-month term with no credit for time served and no good-time credit.

Defense counsel made an oral motion to reconsider and the judge noted he might have given defendant more consideration for pleading guilty had he appeared for his sentencing proceedings and thereby shown respect for the court. The judge denied defendant’s motion for reconsideration and refused to stay the sentence pending appeal.

Defendant first argues the trial judge abused his discretion by imposing the maximum six-month jail term. He compares the misconduct for which he pleaded guilty to other potential offenses which the prosecutor could have lodged against him instead of criminal contempt. Because both the original offense and the conduct which was the basis for revocation carried maximum penalties of 30 days in jail, he concludes the trial judge erred by imposing the maximum penalty for criminal contempt. He states to sentence him to “twelve times what anyone else could have been sentenced for the same actions, merely because it was a condition of his conditional discharge^] was an abuse of discretion.”

It is the responsibility of the State’s Attorney to evaluate the evidence and determine whether and what charges may be criminally brought against a defendant. The court is not authorized to order a State’s Attorney to file criminal charges or to specify what charges should be filed against a defendant. (People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 46, 445 N.E.2d 270, 272; People v. Davis (1983), 95 Ill. 2d 1, 24, 447 N.E.2d 353, 364.) The trial judge had no authority to order the State’s authority to charge defendant with an offense other than criminal contempt.

Defendant conceded in his brief he could be charged with indirect criminal contempt of court. However, he argues imposing the maximum sentence could instill disrespect for the judicial process. He directs us to this court’s previous ruling vacating defendant’s 364-day sentence for criminal damage to property because it was “so out of proportion to the offense as to beget public indignation.” People v. Odom (1980), 82 Ill. App. 3d 853, 855, 403 N.E.2d 297, 299.

Unlike Odom, however, defendant here was provided an initial opportunity to avoid a jail term when he was granted a conditional discharge in the original criminal trespass case. Before sentence was imposed in this case, defendant already possessed a disrespect for the judicial process. Before sentencing defendant to the maximum term, the trial judge indicated he emphasized the importance to defendant of not entering onto public housing property and defendant indicated he would have no difficulty complying with this condition. Less than 60 days later, defendant violated this restriction. He violated the restriction again later that same month. Defendant’s disregard for the previous court order provided ample reason for the trial judge to impose the mandatory six-month term. We also note defendant failed to appear at a court hearing and failed to appear at his sentencing hearing despite warnings by the trial judge of the consequence of such action. The trial judge did not abuse his discretion by sentencing defendant to a six-month jail term.

Defendant next argues the trial judge erred by conditioning his six-month term to not provide credit for good behavior. He directs us to section 3 of the County Jail Good Behavior Allowance Act (Act), which states in pertinent part:

“The good behavior of any person who commences a sentence of confinement in a county jail for a fixed term of imprisonment after January 1, 1987[,] shall entitle such person beginning on the date of sentence to a good behavior allowance, except that: ***. The good behavior allowance provided for in this Section shall not apply *** to individuals sentenced under an order of court for civil contempt.” Ill. Rev. Stat. 1991, ch. 75, par. 32.

The State concedes the trial judge erred by denying defendant credit for good behavior, but argues defendant waived review of this issue. Defendant failed to object to this ruling at his sentencing hearing or to include it in his motion to reconsider. Generally, issues not raised at the trial level are waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) However, the doctrine of plain error is applied to overcome the waiver rule in instances where the error grossly affects interests of justice or a substantial right. 134 Ill. 2d R. 615; People v. Davis (1991), 145 Ill. 2d 240, 250-51, 582 N.E.2d 714, 719; People v. Hood (1991), 210 Ill. App. 3d 743, 749, 569 N.E.2d 228, 232.

Because we find the potential doubling of defendant’s sentence by denying him an opportunity to receive day-for-day good time while in jail falls under the plain error rule, we will consider the issue. Forcing a defendant to serve twice as much time as he may have had to involves a substantial right of that defendant.

Although our ruling in In re N.R. (1988), 172 Ill. App. 3d 14, 16, 525 N.E.2d 1193, 1194, occurred before the Act was revised, its reasoning is similar. The legislature has exclusive authority to establish the rules and regulations for the government and discipline of inmates. Moreover, the Act lists only civil contempt as an exception to the right to good time. (Ill. Rev. Stat. 1991, ch. 75, par. 32.) The absence of criminal contempt as an exception indicates the legislature viewed this offense as one which should have the opportunity to receive good time for good behavior while in jail. The trial judge had no authority to deny defendant’s credit for good behavior while serving his jail term.

A corrected sentencing order should be entered, and we remand for that purpose.

Affirmed in part; reversed and remanded in part.

COOK and LUND, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. DeROSSETT, Defendant-Appellant.
    Fourth District
    No. 4—92—0163
    Opinion filed November 25, 1992.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in Champaign County, defendant, William J. De-Rossett, was found guilty of criminal trespass to real property. (Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).) He was sentenced to 30 days’ imprisonment in the Champaign County correctional center.

Defendant appeals from his conviction and sentence. He argues (1) he was not proved guilty beyond a reasonable doubt; (2) applying the law of criminal trespass to real property to his conduct violated his first and fourteenth amendment rights (U.S. Const., amends. I, XIV); and (3) he was denied his sixth amendment (U.S. Const., amend. VI) right to provide a defense by the trial judge’s denial of his request for a continuance the day the trial began. Defendant also argues he was denied a fair trial because (4) the trial judge refused to order the recording of the voir dire proceedings; (5) the judge denied the parties an opportunity to present an opening statement; and (6) the judge improperly restricted his cross-examination of the State’s two witnesses. Defendant also argues (7) the State’s improper rebuttal argument requires reversal; (8) the jury instructions were fatally flawed because they did not include a mental state; and (9) the trial judge abused his discretion by allowing the jury to review only a portion of one State witness’ testimony. Defendant finally argues (10) the trial judge imposed an excessive sentence.

We reverse defendant’s conviction. The trial judge abused his discretion by denying the parties an opportunity to present opening statements. Prejudicial error also occurred when the trial judge, in response to inquiry by the jury, highlighted only a portion of a witness’ testimony. We address additional issues raised by defendant only because they may arise during his retrial.

I. Facts

On December 2, 1991, defendant was charged by information with criminal trespass to real property. (Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).) It was alleged defendant knowingly entered a building of the Urbana police department after receiving, before he entered, notice from the occupant, Sergeant Michael R. Miller, that such entry was forbidden.

A. Pretrial Proceedings

Defendant was arraigned on December 2, 1991. Over his objection, the trial judge appointed an assistant public defender, Jack Hildebrand, to represent him. Defendant again objected to the appointment of counsel at a pretrial hearing on January 8, 1992. Before the trial began on January 14, Hildebrand sought to withdraw from the case so defendant could represent himself. The trial judge first determined the State had made a plea offer, which Hildebrand communicated to defendant, but defendant wanted to proceed to trial. Defendant again requested permission to represent himself. The trial judge acquiesced and permitted defendant to appear pro se while Hildebrand remained as standby counsel.

The judge announced voir dire proceedings would not be recorded. Defendant objected. He was then told his trial would begin in approximately two minutes. Defendant requested time to prepare his defense, explaining he had not prepared because he had consistently been told he could not represent himself. The trial judge denied his request for a continuance, noting the trial had been set for trial since December 2, 1991. The trial judge excused the court reporter, and potential jurors were led into the courtroom. Defendant again objected to the voir dire not being recorded. The judge proceeded with voir dire.

After voir dire, the judge stated defendant had objected to jury selection and had requested each juror receive a copy of the constitution, the information, and the police reports. The judge noted for the record that he had conducted the voir dire and had excused two jurors at the request of defendant’s standby counsel and an additional juror at the State’s request. Defendant then interjected he had objected to three additional jurors. Over defendant’s objection, the trial judge informed the jury he was not permitting counsel to make opening statements. The judge explained to the jury that defendant was representing himself. On two occasions during his opening remarks, the judge stated he did not know what would happen or how things would proceed.

B. Trial Testimony

The State presented two witnesses to the incident leading to the charge lodged against defendant. Sergeant Michael R. Miller, a shift commander, was in charge of the Urbana police station on November 30, 1991. Defendant entered the lobby at approximately 7:45 a.m. and summoned Miller by ringing a buzzer near the front-desk area. The station lobby was approximately 12 feet by 10 feet. A concrete block wall, a security door, and a bulletproof glass window separated the officer’s front-desk area from the lobby area. The public had access to the lobby and communicated with the police through a small opening in the glass window.

When defendant approached, he was unkempt and smelled strongly of body odor, and had parked a shopping cart outside the front door. He informed Miller he had arrested Sergeant Metzler, the acting watch commander on the night shift, and had come to the station to place Metzler in custody. Metzler had previously told Miller about his earlier encounter with defendant.

Miller told defendant he could file a complaint if he felt Metzler had mistreated him. According to Miller, he also recommended defendant speak with the State’s Attorney, whose office was in the courthouse, to see whether criminal charges against Metzler were warranted. Defendant told Miller he was under arrest for armed resistance. Miller stated he informed defendant at least 12 times what recourses were available to him. Miller explained Metzler was not present and the police could not help defendant. Defendant repeatedly summoned Miller to the front desk.

Miller obtained a complaint form and asked Officer Dean Yount to accompany him into the lobby. Miller handed defendant the complaint form and repeated several times to defendant what recourse he might take. Defendant stated Miller was not listening because he (defendant) was not leaving until he placed Metzler in custody. Miller stated defendant had no further legitimate business at the Urbana police station and repeatedly requested that defendant leave the building. Defendant refused to leave, stating he was not leaving without Metzler. Miller told defendant he was trespassing, took defendant’s arm, and escorted him out the front door of the police station.

Once outside, Miller again told defendant how he could pursue his complaint against Metzler. Miller advised defendant if he returned to the station and “continued to disrupt the activity there,” he would be arrested for criminal trespass. According to Miller, he spent 45 minutes reasoning with defendant before escorting him outside the station. When defendant followed Miller back into the building, defendant was arrested for trespassing.

Officer Yount testified that between 8 a.m. and 8:30 a.m. on November 14, Miller summoned him from patrol to return to the station. Miller asked Yount to accompany him into the lobby to confront defendant. Miller told defendant what options he could pursue regarding his complaint against Metzler. According to Yount’s testimony on cross-examination, two to four minutes before defendant was escorted outside, Miller handed him the complaint form which he could file against Metzler. After defendant was escorted outside the station, Yount heard Miller tell defendant he was not allowed to reenter the station. Yount estimated he and Miller spent 20 minutes in the lobby with defendant before they escorted him from the building.

The trial judge denied defendant’s request to impeach Yount with Miller’s police report. Defendant and his standby counsel decided not to recall Miller. Standby counsel recommended defendant not testify. Defendant did not testify. He stated he had no time to prepare. The defense presented no testimony.

In closing argument, the State made the following comment: “[Defendant] does not have legitimate business there. Who knows what’s next. Maybe if he doesn’t like a cut of meat, he will go to the butcher [and] try and arrest the butcher and tie up their [sic] business.” The trial judge overruled defendant’s objection to these comments. The judge also overruled defendant’s objection to the State’s remark that if it were a supermarket and not a police station, the jury would have no difficulty overcoming the hurdle of finding someone guilty.

C. Jury Instructions and Jury’s Inquiry

At the jury instruction conference, the court overruled defendant’s general objection to each instruction tendered by the State. Defendant stated he had no time to prepare instructions.

During deliberation, the jury inquired in writing about the definition of a building and whether a porch and steps are parts of a building. It also asked if defendant had been forbidden to reenter only until he had legitimate business or if he had been permanently forbidden to reenter the police station. Finally, the jury inquired whether there was a specific time frame during which defendant could not reenter the station. Defendant and his standby counsel agreed the trial judge should not respond to the jury’s questions. The prosecutor agreed as well. The judge instructed the jury it must decide the case based on the evidence presented.

The jury inquired again in writing. It asked if Miller had testified defendant was (1) forbidden to reenter or (2) forbidden to reenter until he had legitimate business. Over the request of defendant and standby counsel that the judge not provide the jury with additional information, the judge had the court reporter review her notes of the State’s redirect examination of Miller. Over additional objection by defendant, the judge summoned the jury into the courtroom. The judge concluded the information the jury requested was straightforward. Standby counsel objected, arguing the portion of the testimony the court proposed to read back was isolated and, in large part, the product of a leading question by the State. The court reporter read to the jury the following redirect questions and answers:

“Q. [Prosecutor:] And, one of the last things you told him in the conversation was, you told him if he came back into the lobby, since he had no legitimate business after you talked to him for forty[-]five minutes, that you would arrest him for trespass, isn’t that true?”
A. [Miller:] Yes, sir, that is true.
Q. *** [Y]ou went back inside and he turned right back and followed you inside, isn’t that true?
A. Yes sir, that’s correct.”

Approximately 45 minutes after this testimony was read to the jury, it found defendant guilty of criminal trespass to real property. Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).

D. Sentencing Factors

Defendant was 47 years old when the offense occurred. He had been unemployed for five years. Defendant reported he received public aid, food stamps, and social security income “because of the effects of alcoholism upon his mind and body.” He consumed alcohol to cope with back pain, but had not consumed alcohol in the past 12 months. He received treatment for a gastrointestinal condition before he stopped consuming alcohol.

Defendant served in the Army, both in Korea from September 1962 through November 1963 and a three-year term in Germany from December 1966 through January 1968. He also served in Vietnam from March 1968 through March 1969. Defendant was honorably discharged from the service and had never been disciplined. After his discharge, defendant attended Parkland College. He had earned 18 semester credit hours and attained a cumulative grade point average of 3.00 on a 4.00 scale.

He described his physical health as not good. While in the service he sustained three ruptured discs, a broken ankle, and a severe injury to his ankle. In spring 1984, and again in summer 1985, defendant’s right lung collapsed. He experiences shortness of breath and dizziness.

Defendant’s prior criminal record consisted of a battery offense in 1977 for which he received 12 months’ supervision. In 1989 his driver’s license was suspended for allegedly concealing a material fact or making a false statement when applying for his license. A month later, defendant was convicted of driving with an expired registration and was fined. In January 1990 defendant’s driver’s license was suspended for one year.

Defendant was interviewed by a representative from intensive probation services, and a suitability report was filed which indicated defendant did not meet the minimum acceptance criteria established by the program for misdemeanor offenders. The report indicated defendant stated he would not cooperate with the program’s conditions and goals. Attached to the report was the waiver signed by defendant “under duress” which indicated he would not participate in the intensive probation supervision (IPS) and he did not want the court to consider IPS as a sentencing option.

At the sentencing hearing in February 1992, defendant disputed only the accuracy of the information in the presentence report related to alleged driver’s license suspensions. The State recommended defendant receive the maximum sentence of 30 days’ incarceration because defendant would not abide by any other sentencing alternative. At the hearing, defendant indicated he would appeal any sentence imposed — even if the sentence imposed was time served.

The trial judge imposed a sentence of 30 days’ incarceration. He indicated he had considered all relevant factors before imposing sentence. He noted defendant’s uncooperative attitude toward the probation department representatives when they were preparing defendant’s presentence report. He also noted defendant’s indication he would not cooperate with the IPS program.

The trial judge concluded IPS was not an appropriate disposition and also concluded conditional discharge or probation were not appropriate sentences because imposition of either would not affect defendant and would not protect the public. Before imposing sentence, the judge indicated he had considered defendant’s situation, history, character, and background.

II. Defendant’s Arguments

We first address a motion to strike taken with this case on appeal. Defendant argues the State’s brief should be disregarded in part or totally because it does not conform with Supreme Court Rule 341 (134 Ill. 2d R. 341). Defendant contends the State blatantly disregarded Supreme Court Rules 341(e)(6) and (f) by including its statement of facts within its argument on defendant’s allegation he was not proved guilty beyond a reasonable doubt. (134 Ill. 2d Rules 341(e)(6), (f).) Defendant argues, in the alternative, the State’s brief should be stricken entirely because the State did not timely file its motion to file a brief in excess of the page limitations and its motion does not adequately establish the necessity of the brief’s length. 134 Ill. 2d R. 341(a).

The striking of an appellate brief, in whole or in part, is a harsh sanction. (People v. Flanagan (1990), 201 Ill. App. 3d 1071, 1075, 559 N.E.2d 1105, 1108.) Such a sanction is appropriate only when the alleged violations of the procedural rules regarding appellate briefs interfere with or preclude review. Flanagan, 201 Ill. App. 3d at 1075, 559 N.E.2d at 1108; James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452, 510 N.E.2d 531, 533.

We reject defendant’s arguments. His argument the facts included by the State do not relate to the argument raised is incorrect. A question of reasonable doubt may require repeating the evidence presented at trial. Moreover, the State’s brief substantially complies with the relevant rules. We believe the appellee may recite facts in the argument portion of the brief if those facts fairly recount the testimony at trial. Although within its argument, this inclusion does not interfere with this court’s understanding of the issues raised or the evidence presented. In addition, we granted the State’s request to submit its brief in excess of the page limitations. We note defendant filed his brief beyond the established deadline. Defendant’s motion to strike is denied.

A. Reasonable Doubt

Defendant contends he was not proved guilty beyond a reasonable doubt because the testimony of Miller and Yount conflicted regarding the two elements essential to proving a criminal trespass to real property. He contends the evidence was insufficient to prove he received notice that entry into the police station was forbidden, or that he left the station intending to make his an unlawful reentry.

A court of review will reverse a conviction only when the evidence is so unsatisfactory as to raise a reasonable doubt about the defendant’s guilt. People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78; People v. Evans (1990), 199 Ill. App. 3d 330, 336, 556 N.E.2d 904, 907.

The criminal trespass to real property statute provides in relevant part:

“Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.” Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).

The statute criminalizes two forms of conduct. It forbids entry onto the property of another, knowing such entry is forbidden. It also forbids remaining on property after being told to leave, even if the initial entry was lawful. (People v. Flanagan (1985), 133 Ill. App. 3d 1, 3, 478 N.E.2d 666, 667; People v. Ulatowski (1977), 54 Ill. App. 3d 893, 896, 368 N.E.2d 174, 176.) This case falls within the first category of proscribed conduct under which the elements of the offense are (1) a person is told by the occupant of a property that entry onto the property is forbidden; and (2) the person enters the property despite the warning.

1. Notice

Defendant initially argues the evidence did not show he received notice before he reentered the building. Miller testified he spoke with defendant inside the station for approximately 45 minutes while unsuccessfully explaining how defendant could proceed with a complaint against Metzler. Miller then secured defendant’s arm and escorted him out of the station. He again explained to defendant his options. He told defendant if he returned to the station and “continued to disrupt the activity there,” he would be arrested for criminal trespass. Miller reentered the station and defendant followed him. Defendant was placed under arrest.

Yount also testified Miller asked defendant to leave because he had no legitimate business to conduct at the station. He saw Miller secure defendant’s arm and escort defendant outside. He also testified he heard Miller tell defendant he was not allowed to reenter the police station.

If defendant’s conviction were not being reversed on procedural grounds, the evidence would be sufficient for a fact finder to conclude defendant received notice that he should not reenter the station. Defendant argues the evidence was insufficient because Miller only informed him he would be arrested if he reentered the station. The statute does not require the owner or occupant to notify the person of the offense he would commit if he enters the property knowing entry is forbidden. It requires only the owner or occupant notify the person entry is prohibited.

Miller’s and Yount’s testimony about what defendant was told was not identical. Miller’s direct testimony was that he told defendant he would be arrested if he returned and continued to cause problems. Yount testified Miller told defendant he could not reenter the station. Although the officers’ testimony on direct examination did not clearly establish defendant was told under no circumstances could he reenter the station after being ejected, the jury could reasonably have concluded the evidence established defendant was properly notified his reentry was prohibited.

Miller spent 45 minutes explaining to defendant what his options were in filing a complaint or criminal charges against Metzler. Miller had to summon Yount from patrol for assistance in removing defendant from the station. Being escorted from the station by his arm under the control of two police officers would suggest to a person of normal intelligence that he should not turn around and follow the officers back into the station.

We also reject the argument that Miller’s testimony seemed colored by emotion and irritation so as to render it unbelievable. Second-guessing the jury’s determination on witness credibility is not our duty. The fact finder’s determinations of witness credibility are entitled to deference on review. (People v. Booker (1992), 224 Ill. App. 3d 542, 550, 585 N.E.2d 1274, 1280; People v. McCarthy (1991), 213 Ill. App. 3d 873, 880, 572 N.E.2d 1219, 1223-24.) Moreover, Miller testified on redirect examination that he told defendant he could not reenter the station. The jury could have believed this testimony, in conjunction with Yount’s testimony, proved beyond a reasonable doubt that defendant knew he was barred from reentering the station.

2. Reentry

Defendant also argues the evidence did not sufficiently establish he exited the building before he was arrested for reentering it after receiving warning not to reenter. He directs us to admissions made by Miller during cross-examination which he claims support the view that he never left the station before being arrested. He also points to the jury’s confusion about this issue as, he contends, is evidenced by questions the jury asked about whether the building’s steps, porch, and sidewalk should be considered part of the building.

Miller’s responses to defendant’s questions on cross-examination do not establish that defendant had not been removed from the police station. Defendant asked Miller whether he believed he (defendant) had willingly left the station. After further clarification that defendant was referring to his departure when Miller escorted him from the station, Miller responded defendant “never really left” but that he “walked out the front door with [Miller].” Defendant asked, “In other words, you removed me?” Miller responded, “Yes, sir. I took you by the arm and walked you outside and you walked outside with me.” Defendant then asked, “So, I had not left the station willingly?” Miller responded, “Well, I had asked you to do so verbally several times and you refused and that’s when I took you by the arm and walked outside with you.”

This cross-examination establishes defendant did exit the police station before reentering and being placed under arrest, having been warned not to return. The jury could have reasonably concluded defendant exited the station after he was warned he had no legitimate business there and he was arrested when he reentered the station.

B. Right to Petition the Government

Defendant next argues the criminal trespass to real property statute, as applied to him, violated his rights under the first and fourteenth amendments to the United States Constitution (U.S. Const., amends. I, XIV). He contends Miller ousted him from the station and denied him reentry because Miller did not agree with the content of defendant’s grievance. According to defendant, he had a right to remain in the lobby of the station or to reenter it to file his complaint against Metzler because the lobby was open to the public to enable individuals to file such complaints.

The State argues no constitutional violation occurred because when defendant was ousted from the station, he then had no further legitimate business there. He refused to follow appropriate procedures for filing a complaint, instead demanding to take Metzler into custody. These actions impeded the operation of the police station.

Defendant’s first amendment protections were not violated. He was not conveying a particularized message to Miller, Yount or members of the public. Moreover, although the Urbana police station presumably processes citizens’ complaints against its officers, defendant’s right to petition the .government for redress did not include a right to disturb the normal functioning of the police station.

1. Communicative Element

In evaluating whether defendant’s conduct is protected by the first amendment, the United States Supreme Court considers whether “[a]n intent to convey a particularized message was present and *** [whether] the likelihood was great that the message would be understood by those who viewed it.” (Spence v. Washington (1974), 418 U.S. 405, 410-11, 41 L. Ed. 2d 842, 847, 94 S. Ct. 2727, 2730.) Defendant’s insistence on remaining in the police station until he arrested Metzler, and his communications during this time, did not present a particular political or social message which Miller and Yount would necessarily understand. Although defendant argues he remained to assert his right to file a complaint, the testimony of Miller and Yount contradicts this allegation. The evidence presented at his trial does not establish his reentry into the station was to convey a particular message to Miller.

2. Access to Police Station

The City of Urbana has a right to protect its property. The government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” (Adderley v. Florida (1966), 385 U.S. 39, 47, 17 L. Ed. 2d 149, 156, 87 S. Ct. 242, 247.) The government need not permit free speech activities on all property. It can consider the nature of the property and the disruption which might be caused by the speaker’s activities. Cornelius v. NAACP Legal Defense & Educational Fund, Inc. (1985), 473 U.S. 788, 799-800, 87 L. Ed. 2d 567, 578, 105 S. Ct. 3439, 3447.

The Urbana police station is a nonpublic forum which is not designated as an area for people to communicate their grievances with the police. Defendant could file a complaint within the office, but he could not stage a one-person demonstration within the office against the Urbana police department’s practices — or against one officer’s conduct.

At one end of the spectrum of forum analysis are public forums, which are streets and parks which “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Committee for Industrial Organization (1939), 307 U.S. 496, 515, 83 L. Ed. 1423, 1436, 59 S. Ct. 954, 964.

The second category of forum is public property which the government has opened for use by the public as a place for expressive activity. Such property is categorized as a limited public forum. Both types of forums permit the government to enact reasonable time, place, and manner regulations on use of the forum. Moreover, a content-based prohibition must be narrowly drawn to bring about a compelling State interest. (Widmar v. Vincent (1981), 454 U.S. 263, 269-70, 70 L. Ed. 2d 440, 447-48, 102 S. Ct. 269, 274.) The Urbana police station has not been opened to the public for expressive activities merely because it accepts grievances from citizens.

Public property which is not by tradition or by designation a forum for public communication is governed by different standards. A public-owned facility which is dedicated to use for either communicative or noncommunicative purposes, but has never been designated for indiscriminate expressive activity by the general public, is categorized as a nonpublic forum.

The government may reserve the nonpublic forum for its intended purpose, communicative or otherwise, as long as the regulation on speech is reasonable and is not merely to suppress expression because public officials oppose the speaker’s view. Access to a nonpublic forum can be based on content and subject matter if the distinctions drawn are “reasonable in light of the purpose which the forum at issue serves.” Perry Education Association v. Perry Local Educators’ Association (1983), 460 U.S. 37, 49, 74 L. Ed. 2d 794, 807, 103 S. Ct. 948, 957.

The Urbana police station is a nonpublic forum. It is reasonable for the government to limit expressive conduct within the confines of the station. Defendant may have had a right to file a grievance, but he has no constitutional right to interfere with the workings of the police station for a duration of 45 minutes and refuse to leave despite receiving an explanation of his options and a complaint form which he was told he could file against Metzler.

The lobby of the station was open to the public, but for a limited purpose. The lobby was restricted in size. When defendant sought to exercise his alleged first amendment right, only one officer staffed the station. Miller was forced to summon Yount from patrol to assist in ejecting defendant from the station.

The Urbana police can restrict a citizen’s access to express his or her views while in the police station. Defendant refused to follow the proper procedure for pursuing a citizen’s complaint. He also interfered with the performance of police duties by expressing his complaint in a disruptive fashion and for an extended period. The station was a nonpublic forum and defendant was properly arrested and prosecuted for criminal trespass to real property because he was not engaged in free speech activities protected by the first amendment.

C. Fair Trial

Although defendant discusses each of the four reasons discussed below as reason for reversal of his conviction, each raises the same general objection, i.e., that defendant was denied a fair trial.

1. Denial of Continuance

Defendant argues his due process protections were infringed when the trial judge denied his request for a continuance to enable him to prepare for his trial. He reasons he was not informed until moments before the trial occurred on January 14 that he could proceed pro se.

A defendant must be provided sufficient time to prepare his defense and receive advice from counsel. (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55.) Defendant argues he was effectively denied the assistance of counsel by the judge’s refusal to grant him a continuance. He contends he was surprised the trial was beginning January 14 and was prejudiced because he lacked preparation time. He allegedly lacked time to prepare cross-examination, jury instructions, and a closing argument; research the law; and prepare to testify.

When a case has reached trial, the trial judge must only grant a continuance if a sufficient excuse justifies such delay. (134 Ill. 2d R. 231(f).) The State argues defendant and his standby counsel had a reasonable opportunity to prepare defendant’s case. A court of review will not reverse a trial judge’s denial of a continuance unless the denial prejudiced defendant. People v. Wilson (1963), 29 Ill. 2d 82, 92, 193 N.E.2d 449, 454; In re Tally (1991), 215 Ill. App. 3d 385, 390, 574 N.E.2d 1262, 1265; People v. Barnes (1985), 130 Ill. App. 3d 1026, 1030, 475 N.E.2d 265, 268.

The record indicates defendant and his standby counsel were not unprepared for trial. Hildebrand was appointed as defendant’s counsel December 2, 1991, when defendant made his initial appearance in court. Counsel had six weeks to prepare before trial. He did not indicate to the trial judge that he was not prepared to proceed as defense counsel. He remained as standby counsel to defendant and participated in defendant’s trial.

Contrary to defendant’s claim, this case is similar to this court’s ruling in Barnes. There, on the day of trial, the judge denied the public defender’s motion to withdraw as defense counsel, and at defendant’s request, appointed the public defender to serve in an advisory capacity. Defendant argued the judge erred by denying his motion for a continuance because his role was analogous to newly appointed counsel and he required preparation time. The Barnes court concluded the judge had not abused his discretion because, although defendant may have felt unprepared for trial, his advisory counsel was well prepared. Defendant specifically sought assistance from the pub-lie defender during the trial and counsel actively participated in the proceedings. Barnes, 130 Ill. App. 3d at 1030, 475 N.E.2d at 268.

Similarly, Hildebrand served as advisory counsel to defendant. Defendant sought assistance from Hildebrand before the trial judge offered to assign Hildebrand to that capacity. Hildebrand actively participated in the proceedings. Before trial, he obtained the police reports related to the incident and entered plea negotiations with the State. During voir dire he exercised two peremptory challenges on defendant’s behalf. He cross-examined Yount, advised defendant against testifying on his own behalf, and reviewed the State’s jury instructions and objected to some of them. He also submitted an instruction on defendant’s behalf, objected to the judge responding to jury’s inquiries after deliberations began, and filed a post-trial motion on defendant’s behalf.

Moreover, although defendant informed the trial judge he was unprepared, he did not contend he lacked material evidence or he had witnesses to present whom he had not contacted. Defendant did not allege a factual defense which required more time to develop. The judge made both State’s witnesses available to defendant to call as his own witnesses. The denial of defendant’s request for a continuance did not prejudice his defense.

2. No Opening Statements

Defendant next argues the trial judge’s decision, despite defendant’s objection, not to permit opening statements violates the express mandate of Supreme Court Rules 235 and 432 (134 Ill. 2d Rules 235, 432). Rule 432 provides opening statements in criminal cases are governed by Rule 235, which states:

“As soon as the jury is impaneled the attorney for the plaintiff may make an opening statement. The attorney for the defendant may immediately follow with an opening statement. An opening statement may not be made at any other time, except in the discretion of the trial court.” 134 Ill. 2d R. 235.

The State argues defendant was not prejudiced by the judge’s decision to dispense -with opening statements. Defendant was permitted to let his theory of his defense develop as the evidence was presented because he had not provided the jury, in advance, an outline of his alleged defense. It also contends that any error occasioned by this ruling was harmless in light of the evidence presented at trial.

The historical and practice notes to Rule 235 indicate the rule was revised to grant the trial judge discretion to decide whether a party can make its argument during different stages of the proceeding. For example, a defendant may prefer to make his opening remarks after the State presents its case in chief. (Ill. Ann. Stat., ch. 110A, par. 235, Historical and Practice Notes, at 499-500 (Smith-Hurd 1985).) The rule does not grant discretion to the trial judge to decide to dispense with opening remarks. Parties have a right to make opening and closing arguments. This decision is not left to the trial judge’s discretion. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.2, at 397 (5th ed. 1990); Liptak v. Security Benefit Association (1932), 350 Ill. 614, 619, 183 N.E. 564, 566.

We are aware of no authority permitting a trial judge to deny opening statements in a jury trial. The trial judge committed reversible error by denying the parties their mandated right to address the jury through opening statements.

3. Voir Dire Not Recorded

Defendant contends the trial judge’s decision to dispense with recording the voir dire proceedings over his objection was reversible error. He contends that without a transcript of the proceedings his opportunity to appeal the selection process has been foreclosed. Defendant unsuccessfully moved to exclude all 15 venirepersons for cause and also objected when three of the jurors to whom he had objected were dismissed peremptorily.

Defendant does not indicate by reference to the record how voir dire was flawed. Where no verbatim transcript is available to indicate an alleged error, the Illinois Supreme Court rules provide alternative methods for preserving the record. (134 Ill. 2d Rules 323(c),(d).) Defendant failed to submit a bystander’s report or an agreed statement of facts. Defendant has waived any alleged error regarding the propriety of the trial judge’s rulings during voir dire. People v. McClurg (1990), 195 Ill. App. 3d 381, 388, 552 N.E.2d 290, 294.

4. Prosecutor’s Rebuttal

Defendant contends the State’s rebuttal argument prejudiced his case. He initially complains about the statement that he had no legitimate business at the station. Second, he complains the State was permitted to analogize a police station to a supermarket. Defendant notes that one purchases goods at a market, but enters a police station for various reasons, including to petition the government for redress, a constitutionally protected right. Defendant contends the State’s remarks were inflammatory.

The gist of defendant’s closing argument was that he had not committed criminal trespass because he had a constitutional right to pursue his complaint against Metzler. He claimed he had not intended to make a citizen’s arrest of Metzler, but he merely wanted to voice his complaint about Metzler’s actions. He contended the police discriminated against him by refusing to explain the procedures for filing a complaint and by withholding a complaint form until moments before evicting him from the premises.

Latitude allowed on rebuttal is within the sound discretion of the trial judge and will not be disturbed unless a clear abuse of discretion resulted in grave injustice to defendant. (People v. Sandoval (1990), 135 Ill. 2d 159, 194, 552 N.E.2d 726, 741-42; People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267, 281.) Reversible error occurs only when there is a reasonable basis for concluding the jury was prejudiced by improper remarks at closing. People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629, 638; People v. Craddock (1991), 210 Ill. App. 3d 791, 794, 569 N.E.2d 283, 285.

We conclude the State’s remarks in this case were not improper. Arguments and statements which are based on facts and evidence or legitimate inferences from such evidence are permissible during the State’s closing remarks. (People v. James (1990), 200 Ill. App. 3d 380, 393, 558 N.E.2d 732, 741; People v. Baker (1990), 195 Ill. App. 3d 785, 788, 552 N.E.2d 421, 423.) The State may respond to comments.by the defense which invite or provoke such responses. (People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, 677; James, 200 Ill. App. 3d at 393, 558 N.E.2d at 741.) The jury was also advised that closing statements are not evidence.

The comments complained of by defendant were permissible pursuant to the above principles. Whether defendant had legitimate business at the station when his arrest occurred was at issue in the case. He contended he was legitimately there to pursue a constitutionally protected right to file a complaint. The State contended otherwise. The State could remark in rebuttal to defendant’s contention that he had legitimate business at the station.

The State’s comparison between the police station (and defendant’s refusal to leave), and a supermarket — where defendant might also refuse to leave if he were disgruntled with a butcher — may not be precisely parallel, but it is arguably an analogy to defendant’s alleged illegal conduct. The State can comment on the evil results of crime. (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739, 744; People v. Ervin (1992), 226 Ill. App. 3d 833, 846, 589 N.E.2d 957, 967.) Its suggestion that defendant would trespass on other property presented a plausible scenario of what might occur if the jury sanctioned defendant’s conduct by finding him not guilty. The statements made during the State’s rebuttal, and permitted by the trial judge, were proper.

D. Cross-examination of State Witnesses

Although Miller testified during direct examination that defendant had not resisted arrest, during cross-examination, defendant was not allowed to elicit that defendant had been arrested for criminal trespass and resisting a police officer. Neither was defendant permitted to elicit from Miller that he (Miller) was identified in the police report as the victim of defendant’s offense. The court also denied defendant an opportunity to elicit from Miller how the charge against him read or what the information stated.

On re-cross-examination, defendant was not permitted to question Miller about the citizen’s complaint form. The judge explained the law did not view the complaint form as evidence. Defendant also was not permitted to present evidence about why Miller thought defendant came to the police station, what the initial charges against defendant were, who selected the charges, and if Miller knew ahead of time what the charge would be.

Defendant was not permitted to ask Yount on cross-examination if he was familiar with the specific charge lodged against defendant. Defendant was also foreclosed from asking Yount about his constitutional duties or whether he was required to know about how to handle complaints, whether he ever handled a complaint, and whether defendant’s complaint had been logged or if any action had been taken on it.

Defendant again directs us to the questions asked by the jury during deliberations. He argues these questions indicate the jury might have reached a different result had he been permitted to present evidence about the arrest charges lodged against him and the standard complaint process followed by the Urbana police.

Relevant evidence is evidence which tends to make the facts at issue more or less probable. (People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161; People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.) Defendant argues the excluded evidence was relevant because it made it more likely than not that he was not committing a trespass or that he was rightfully in the station to conduct legitimate business.

Defendant first argues the nature of the charges initially lodged against him was relevant to the issue of notice and knowledge, requisite elements of criminal trespass to real property.

Defendant next argues the excluded evidence was relevant to enable the jury to evaluate the officer’s actions in this case against standard police procedure when a citizen seeks redress against a police officer. Defendant correctly notes the State in some criminal trials questions police witnesses to establish they followed proper procedure under the circumstances presented.

Defendant has waived review of this issue by not including it in his post-trial motion or the amended post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. Sinnott (1992), 226 Ill. App. 3d 923, 933, 590 N.E.2d 502, 509.

E. Jury Instructions

Defendant argues reversible error occurred when the jury instruction provided did not contain the required mental state for the commission of criminal trespass to real property. He concedes neither he nor his standby counsel objected to the jury instructions on this basis. However, he directs us to a ruling of the First District Appellate Court that because criminal trespass is a specific intent crime, a mental state must be expressly stated in the jury instruction. People v. Grant (1981), 101 Ill. App. 3d 43, 47-48, 427 N.E.2d 810, 813-14. People’s instruction No. 7A provided the following:

“A person commits the offense of criminal trespass to real property when he enters a building after receiving prior to such entry notice from the occupant that such entry is forbidden.”

(See Illinois Pattern Jury Instructions, Criminal, No. 16.05, at 339 (2d ed. 1981) (hereinafter IPI Criminal 2d) (now Illinois Pattern Jury Instructions, Criminal, No. 16.11, at 661 (3d ed. 1992) (hereinafter IPI Criminal 3d).) People’s instruction No. 8A provided:

“To sustain the charge of criminal trespass to real property, the State must prove the following propositions:
First: that the defendant entered a building; AND,
Second: that the defendant, prior to the entry, received notice from the occupant of said building that such entry was forbidden.”

See IPI Criminal 2d No. 16.06, at 340 (now IPI Criminal 3d No. 16.12, at 664).

Failure to object at trial to an asserted error in jury instructions is usually deemed to be waiver. In addition, parties cannot raise on appeal the failure to give an instruction unless they tendered it. (People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251; People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027, 1029.) Issues not raised in a post-trial motion are also generally waived on review. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Sinnott, 226 Ill. App. 3d at 933, 590 N.E.2d at 509.

Defendant waived consideration of error in the instructions because he did not proffer his own instructions or object to these instructions in a post-trial motion. We note the State misinformed the trial judge that the pattern jury instructions did not contain specific instructions related to criminal trespass to real property.

The pattern jury instructions list “knowingly” or “intentionally” or “recklessly” as the requisite intent which must be included in instructions for the offense of criminal trespass to property. (See, e.g., IPI Criminal 3d Nos. 16.11, 16.12.) The relevant mens rea should be included in the instructions if at issue in the case. On remand the jury should be properly instructed according to the pattern jury instructions related to criminal trespass to real property.

F. Response To Jury Questions

The jury began deliberating at 3:47 p.m. After earlier being denied additional information, the jury again sought information at approximately 5:30 p.m. It asked if Miller had testified that defendant was (1) forbidden to reenter or (2) forbidden to reenter until he had legitimate business.

Defendant and standby counsel objected to providing the jury additional information. Hildebrand indicated to the trial judge that he did not recall any testimony that defendant had been forbidden from reentering. He also opined the jury had heard the relevant evidence and should conclude for itself. The trial judge concluded the jury should be provided testimony elicited during redirect examination of Miller. Hildebrand again objected, contending the response to the State’s Attorney’s question should not be read back to the jury because it was leading. The following question and answer were then read to the jury:

“Q. [Prosecutor:] And, one of the last things you told him in the conversation was, you told him if he came back into the lobby, since he had no legitimate business after you talked to him for forty[-]five minutes, that you would arrest him for trespass, isn’t that true?
A. [Miller:] Yes, sir, that is true.
Q. *** [Y]ou went back inside and he turned right back and followed you inside, isn’t that true?
A. Yes sir, that’s correct.”

At 6:16 p.m. the jury reached a guilty verdict. Defendant argues the judge abused his discretion by furnishing this testimony to the jury. He argues these portions of the State’s redirect examination of Miller were not indicative of the entire testimony and it did not specifically address the jury’s questions. We agree that providing the jury this limited additional information was prejudicial and constituted reversible error.

Whether to permit a jury’s request for a review of testimony is within the trial judge’s discretion. (People v. Franklin (1990), 135 Ill. 2d 78, 105, 552 N.E.2d 743, 755; People v. Pierce (1974), 56 Ill. 2d 361, 363-64, 308 N.E.2d 577, 578; People v. Govin (1991), 213 Ill. App. 3d 928, 938, 572 N.E.2d 450, 457.) The trial judge must determine how helpful the testimony may be to the jury and how harmful providing additional information to the jury could be to its deliberations. (Govin, 213 Ill. App. 3d at 938, 572 N.E.2d at 457.) Absent an abuse of discretion, the trial judge’s conclusion will not be disturbed. Franklin, 135 Ill. 2d at 105, 552 N.E.2d at 755; see also People v. Olinger (1986), 112 Ill. 2d 324, 349, 493 N.E.2d 579, 591.

The State argues the jury deliberation was not affected because Miller’s testimony was the same on direct as in the redirect examination testimony read to the jury. This contention ignores a distinction between Miller’s statements. His statement on redirect examination was prompted by the State’s leading question, which asked whether it was correct that after 45 minutes, he had escorted defendant out of the station and told him not to return. To this question, Miller merely replied, in significant part, that this was correct. In contrast, on direct examination Miller stated he told defendant he would be arrested if he reentered the station and continued to create problems.

Yount testified he heard Miller tell defendant not to reenter the station. Testimony about what defendant was told after he was escorted from the station was contradictory regarding a significant factor in determining his guilt. The jury had to find defendant was sufficiently informed that he could not reenter the station. Highlighting Miller’s redirect testimony by providing only it to the jury was prejudicial. This suggested the answer to the jury’s question on what defendant was told about reentering was not at issue, but was clearly represented by Miller’s redirect testimony. The trial judge committed reversible error by responding to the jury question in this form.

G. Excessive Sentence

We need not consider defendant’s argument that the sentence imposed was excessive, because we are reversing and remanding for a new trial.

III. Conclusion

We note the trial judge’s task in this case was made more difficult because defendant’s actions were challenging. The trial judge has an easier task when there are skilled advocates on both sides of the case than when dealing with inexperienced counsel or pro se litigants. A trial judge faced with a pro se defendant who sorely tries his patience by a penchant for disruption may be tempted to modify trial procedures. This temptation may lead to a deprivation of rights. We do not suggest defendant should have been treated more favorably because he chose to proceed with his trial pro se. A pro se defendant must comply with rules of procedure required of those represented by counsel and a court should not apply more lenient standards to pro se clients. (People v. Bond (1989), 178 Ill. App. 3d 1020, 1023, 534 N.E.2d 156, 159.) However, a pro se defendant should not be treated less favorably than defendants represented by counsel.

Although the trial judge demonstrated patience in explaining to defendant both the potential ramifications of his decision to represent himself, and the reasons his continual objections to court rulings were overruled, defendant’s procedural rights were violated. We reverse defendant’s conviction.

The evidence was sufficient to convict defendant beyond a reasonable doubt, so double jeopardy concerns do not arise. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.) Double jeopardy is not a bar where, as here, reversible error is the result of trial error. Burks v. United States (1978), 437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.

On remand, defendant should be permitted to provide an opening statement, the jury instructions should be pattern jury instructions, and, if the jury similarly inquires about evidence while deliberating, the trial judge should appropriately exercise his discretion. We reverse defendant’s conviction and remand for a new trial.

Reversed and remanded.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE McLAREN

text:
    FIRST FEDERAL SAVINGS BANK OF PROVISO TOWNSHIP, Plaintiff-Appellee, v. DROVERS NATIONAL BANK OF CHICAGO, as Trustee, et al., Defendants (Jeffrey W. Nolen et al., Defendants-Appellants).
    Second District
    No. 2—91—1123
    Opinion filed August 14, 1992.
    John R. Keying, of Keying & Watts, of Naperville, for appellants.

      Nancy T. Owens and Daniel Kohn, both of Horwood, Marcus & Braun, of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, First Federal Savings Bank of Proviso Township, sued to foreclose a mortgage on certain property held by defendant Drovers National Bank of Chicago (Drovers) as trustee under an Illinois land trust. Jeffrey, Deborah, and Catherine Nolen are the children of John and Joan Nolen, the original debtors under the note that was secured by the mortgage. The Nolen children opposed the foreclosure action, relying on their status as owners of the beneficial interest (though not having the power of direction) under the land trust. The trial court granted summary judgment for plaintiff, holding that the Nolen children had raised no genuine issues of material fact to oppose plaintiff’s right to foreclose the mortgage. The trial court also awarded plaintiff attorney fees pursuant to the mortgage.

The Nolen children argue that (1) the trial court erred in granting plaintiff summary judgment on the foreclosure action; and (2) the trial court’s award of attorney fees was an abuse of discretion. Plaintiff requests reasonable attorney fees for this appeal pursuant to the mortgage. We affirm and order a response from plaintiffs and their attorney pursuant to Supreme Court Rule 375 (134 Ill. 2d R. 375).

In 1971 Drovers and the Nolen parents entered into a trust agreement. Drovers became trustee of real estate (the property) in Villa Park, Illinois. John and Joan Nolen held the beneficial interest in the land trust. In March 1983, the Nolens and Drovers agreed to an unrecorded modification of the trust agreement. The Nolen parents assigned the beneficial interest in the trust to the appellants but retained the power of direction.

On May 14, 1987, plaintiff, Drovers and the Nolen parents entered into the following agreements. Plaintiff agreed to lend Drovers $50,000. To secure this note, plaintiff became mortgagee and Drovers became mortgagor of the property. The Nolen parents assumed the personal obligation on the $50,000 loan and agreed to all the provisions of the note and mortgage.

On September 14, 1989, plaintiff filed a complaint to foreclose the mortgage, alleging that the note and mortgage had been in default since September 1, 1988. Plaintiff asked the court to declare due the entire debt secured by the note and mortgage. Plaintiff requested a judgment of foreclosure, a judicial sale of the property, and, if necessary, a personal judgment for any deficiency. Plaintiff also requested a judgment for attorney fees, costs and expenses.

On October 10, 1989, John Nolen moved to be dismissed as a party to the foreclosure proceeding. His motion stated that Joan Nolen was deceased, that he and Joan Nolen were the signatories of the original note, and that this note had been discharged in bankruptcy. He also stated by affidavit that the Nolen children now held the beneficial interest in the property. The court dismissed the Nolen parents from the case.

On October 27, 1989, the Nolen children moved pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) to dismiss the foreclosure suit. They alleged that they were the only beneficiaries of the trust; that they did not sign the note or other personal obligation on the $50,000 loan; and that, because the Nolen parents’ personal liability on the note had been discharged in bankruptcy, there was no valid note on which to base the mortgage foreclosure action.

Plaintiff responded that the Nolen children had effectively admitted that they were not parties to the foreclosure action; that the discharge in bankruptcy of the Nolen parents’ personal liability on the note had no effect on the mortgage securing the note or on the foreclosure proceedings; and that because the Nolen children never received the power of direction under the land trust agreement, their consent was not required when Drovers entered into the mortgage at the Nolen parents’ request. The trial court denied the motion to dismiss.

On February 6, 1990, the Nolen children moved for reconsideration, arguing that the mortgage and note did not incorporate each other and that the mortgage was therefore “unsecured by the note as a matter of law.” Plaintiff responded that the note and mortgage were valid, that the mortgage explicitly stated that it was granted to secure the payment of the note, that the note explicitly stated that it could be satisfied by enforcement of the mortgage, and that the note and mortgage could each be enforced independently. Plaintiff argued that the motion for reconsideration simply reintroduced arguments that the court had already rejected; these arguments thus were not well grounded in fact or existing law and were reintroduced solely to cause delay. Plaintiff cited and argued section 2—611 but did not pray for fees. The proper basis for sanctions was (and is) Supreme Court Rule 137 (134 Ill. 2d R. 137), effective August 1, 1989.

On June 6, 1990, after a hearing, the court denied the motion for reconsideration and gave the Nolen children 28 days to file an answer. On July 20, 1990, plaintiff moved for (1) a default judgment against all defendants; (2) a judgment of foreclosure; and (3) attorney fees.

On July 20, 1990, the court granted plaintiff a judgment of foreclosure. The order stated that plaintiff was entitled to attorney fees as specified by the mortgage; these fees and other costs of litigation were made a lien on the property. The court also found all defendants in default.

On August 2, 1990, the Nolen children moved to vacate the judgment. They alleged that attorney Heying mailed a copy of the answer to the complaint to the Nolen children, but had inadvertently sent the answer to the wrong address, and that Heying had mistakenly docketed the matter for July 25, 1990. The court granted the motion and allowed the Nolen children to answer.

On September 4, 1990, the Nolen children answered the complaint. They alleged that the foreclosure was invalid because the consideration for the note and mortgage was never delivered to the trust beneficiaries (i.e., the Nolen children). They also asserted that the note and mortgage did not sufficiently incorporate each other to justify acceleration of the note “as a basis to foreclose the mortgage.”

Plaintiff moved for summary judgment. The Nolen children argued that there were issues of fact, e.g., whether the note was supported by consideration and whether the discharge of the note in the bankruptcy proceeding prevented plaintiff from foreclosing on the mortgage. On December 21, 1990, the court granted plaintiff summary judgment and entered a judgment of foreclosure.

On December 21, 1990, plaintiff filed a petition for attorney fees, pursuant to the terms of the mortgage papers, updating its earlier petition. On January 11, 1991, the Nolen children filed their motion for reconsideration. They repeated their assertion that the mortgage was invalid for want of consideration. They also argued that plaintiffs petition for attorney fees was inadequately substantiated.

On February 21, 1991, the trial court denied the Nolen children’s motion for reconsideration and set March 4, 1991, for the hearing on plaintiff’s petition for attorney fees. Plaintiff submitted a detailed statement of the fees it had incurred in the cause. The Nolen children filed a lengthy argument “resisting” the petition. Plaintiff responded that the fees were proper and that the Nolen children and their counsel had increased plaintiff’s costs by filing frivolous and repetitious motions.

On August 1, 1991, the court by letter opinion rejected the objections to the fee petition and held that plaintiff’s fees were fair and reasonable “given the circumstances of the case,” which included “the approach taken by the [Nolen children].” On September 13, 1991, the court entered an order finding plaintiff’s attorney fees fair and reasonable and granting plaintiff leave to proceed with a foreclosure sale.

We have the inherent jurisdiction to impose sanctions and award attorney fees under Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)). (Gilkey v. Scholl (1992), 229 Ill. App. 3d 989, 993; Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 788.) Plaintiff has not specifically requested sanctions on this particular ground, but a reviewing court may invoke Rule 375(b) on the court’s own initiative where it deems it appropriate. (134 Ill. 2d R. 375(b).) Where the court initiates the sanction, the court must require the party or attorney or both to show cause why such a sanction should not be imposed. 134 Ill. 2d R. 375(b).

The purpose of Rule 375(b) is to condemn and punish the abusive conduct of litigants and their attorneys who appear before us. (Kennedy, 197 Ill. App. 3d at 788.) Specifically, Rule 375(b) allows us to impose an appropriate sanction upon a party or the party’s attorney if “it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose.” 134 Ill. 2d R. 375(b).

We believe that, in the absence of a showing to the contrary, this appeal warrants sanctions. First, it appears that the appeal itself is frivolous. As stated in the supreme court rule, an appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law. (134 Ill. 2d R. 375(b).) Otherwise stated, an appeal will be deemed frivolous if a reasonable, prudent attorney would not in good faith have brought such an appeal. Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 791; accord Dreisilker Electric Motors, Inc. v. Rainbow Electric Co. (1990), 203 Ill. App. 3d 304, 312.

Plaintiff undertook to foreclose a mortgage on property that was without doubt subject to the mortgage. Both the original note and the mortgage itself gave plaintiff the right to proceed in rem against the property in the event of a default. There is no dispute that the mortgage is in default. On appeal, howéver, the Nolen children argue that the grant of summary judgment was improper because (1) they were “strangers” to the original debt and should not be “held responsible” for the default because they received no consideration, i.e., proceeds from the original loan; and (2) the original note was discharged in bankruptcy, therefore extinguishing the mortgage liability and preventing foreclosure. We conclude that both of these issues are without merit and that counsel for the Nolen children knew or should have known of these issues’ lack of merit at the time of the appeal.

The Nolen children are not being held “responsible” for the loan; rather, they are (at most) losing their beneficial interest in the property as a result of the default. Under an Illinois land trust, the trustee (here Drovers) has both legal and equitable title to the property; the beneficial interest is personal property. (Ill. Rev. Stat. 1989, ch. 29, par. 8.31; Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535, 543.) Until March 1983, the Nolen parents held this property. They permissibly transferred the beneficial interest to their children while retaining the power of direction. See Dorman v. Central National Bank (1981), 97 Ill. App. 3d 429, 432-33; Rudolph v. Gersten (1968), 100 Ill. App. 2d 253.

As long as the Nolen parents retained the power of direction, they retained the legal right to mortgage the property (or, more precisely, to direct Drovers to do so), even at the potential cost of defeating the Nolen children’s interest in the property. Dorman, 97 Ill. App. 3d at 432-33; Gersten, 100 Ill. App. 2d at 264; see also Bank of Illinois v. Bank of Illinois (1973), 13 Ill. App. 3d 711 (mortgagor could foreclose mortgage against property even though assignees of beneficial interest did not know of mortgage).

Thus, when plaintiff sued to foreclose the mortgage, it was irrelevant that plaintiff had provided appellants with no consideration in the form of loan proceeds; plaintiff loaned the Nolen parents $50,000 and was not timely reimbursed. Plaintiff therefore had a right to proceed against the property. The Nolen children suffered disappointed expectations, not legal injury.

Furthermore, the Nolen children received the beneficial interest via an unrecorded and gratuitous transfer from their parents. Their argument that the mortgage foreclosure should be enjoined because they themselves were “strangers” to the mortgage is not merely, as we have explained, legally and logically incorrect; it is also tantamount to a request that this court permit a maneuver that could be used to defraud creditors. The Nolen children argue that there can be no foreclosure on land held in trust if the beneficiary has secretly transferred his beneficial interest to a third party. Such an argument is frivolous and potentially mischievous.

The Nolen children also argue that plaintiff would not be entitled to foreclose against the property were it shown that John Nolen’s personal debt had been discharged in bankruptcy. This argument is incorrect as a matter of law. In Johnson v. Home State Bank (1991), 501 U.S. 78, 115 L. Ed. 2d 66, 111 S. Ct. 2150, the Supreme Court held unanimously that a discharge in bankruptcy extinguishes only the creditor’s right to proceed in personam against the defaulting debtor and not the right to proceed in rem in a mortgage foreclosure action. The Court noted that the Bankruptcy Code embodied a rule the Court adopted in 1886. We note that the Court decided Johnson slightly over three months before the notice of appeal was filed in this case.

The Nolen children next challenge the trial court’s award of attorney fees to plaintiff. We conclude that this aspect of the appeal is also frivolous.

Under the mortgage and the Illinois Mortgage Foreclosure Law, plaintiff has the right to reasonable attorney fees incurred in connection with the foreclosure, with these fees chargeable against the proceeds from the judicial sale. (See Ill. Rev. Stat. 1991, ch. 110, pars. 15—1504(a), 15—1510.) At the hearing on fees, plaintiff submitted a detailed breakdown of its attorney fees; the Nolen children presented no expert testimony (and essentially no testimony at all) that these fees were unreasonable. The trial court explicitly found that plaintiff’s fees were fair and reasonable.

The attacks on the fee award amount to little more than random sniping, with no support from either evidence or case law. With no record to support an allegation of excessive fees, a reasonably prudent attorney acting in good faith would not have raised the issue in this court. That the argument is frivolous is further suggested by the manner in which the Nolen children present it in their brief. In violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), they cite neither relevant authority nor specific parts of the record. We consider the issue waived. 134 Ill. 2d R. 341(e)(7); see, e.g., Poplar Grove State Bank v. Powers (1991), 218 Ill. App. 3d 509, 516-17.

We thus conclude that the Nolen children and their attorney should be required to show cause why a sanction should not be imposed on the ground that this appeal is frivolous under the standard of Supreme Court Rule 375(b). Should they fail to make such a showing, we shall consider this a basis for sanctions or attorney fees.

Second, this appeal appears to violate Supreme Court Rule 375(b) in that it appears not to have been taken in good faith, but for an improper purpose, to cause unnecessary delay or harassment. We note not only the apparent frivolousness of the issues raised on appeal, but also the trial judge’s considered conclusion that the Nolen children and their counsel needlessly contributed to plaintiff’s expenses by repeatedly raising meritless arguments for no discernible valid purpose. See, e.g., Singer v. Brookman (1991), 217 Ill. App. 3d 870, 880.

The manner of prosecuting this appeal suggests that it was brought for the purpose of delay and harassment. We note that attorneys are obligated under supreme court rules governing professional conduct not to bring frivolous appeals. 134 Ill. 2d R. 3.1.

The Nolen children’s statement of facts is both highly argumentative and grossly inaccurate, in blatant disregard of Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)). It contains numerous argumentative if not gratuitous assertions, e.g., (1) that both plaintiff and Drovers erred in disbursing the loan proceeds to the Nolen parents; (2) that the Nolen children “receive[d] nothing. No consideration, no hearing on the merits, no equal protection of the procedural law”; and (3) that the trial judge deprived the Nolen children of their due process rights without understanding what he was doing.

We must commend the trial judge for his patience in allowing the Nolen children to present numerous arguments with little, if any, basis in fact or in law. Far from depriving the Nolen children of due process, the judge allowed them to introduce all of the factual matters and arguments they desired. The judge simply concluded that none of their assertions or arguments negated plaintiff’s right to summary judgment.

The “Argument” in the Nolen children’s brief cites no relevant case authority and relies heavily on string citations to cases with little relevance here. The Nolen children resort to crude melodrama, e.g., that they have been put through a “Dickensian legal nightmare” and that the proceedings at the trial level resembled “a trip back to the legal misery of Dickens’s London.” Such hyperbolic “argument” does nothing to persuade us that this appeal has any merit.

This court does not mean to discourage attorneys from zealously representing their clients or from bringing appeals that have even arguable merit. Unless the Nolen children or their counsel are able to persuade us otherwise, we do not believe that this is such an appeal.

We therefore direct the Nolen children and their attorney to file, within 14 days, a brief or memorandum with this court showing why we should not impose sanctions or attorney fees under Supreme Court Rule 375(b).

Should we thereafter decide that this appeal warrants sanctions, we shall order, in due course, that plaintiff file a statement of reasonable expenses and attorney fees incurred as a result of this appeal, with an appropriate opportunity for the Nolen children and their counsel to respond. This court will thereafter file a supplemental opinion or order determining the amount of the sanction to be imposed on the Nolen children or their counsel. See Singer, 217 Ill. App. 3d at 880-81; Dreisilker, 203 Ill. App. 3d at 312-13.

For the above reasons, the judgment of the circuit court of Du Page County is affirmed, and a rule to show cause issued.

Affirmed; rule to show cause issued.

INGLIS, P.J., and DUNN, J., concur.