author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND J. GORNIK, Defendant-Appellant.
    Third District
    No. 3-91-0404
    Opinion filed April 7, 1992.
    Rehearing denied May 22, 1992.

      Ettinger, Pechter & Stillo, Ltd., of Oak Lawn (Adam N. Stillo, Jr., of counsel), for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant Raymond Gornik was charged by indictment with 52 counts of official misconduct (Ill. Rev. Stat. 1987, ch. 38, pars. 33— 3(b), (c)). Following a bench trial, defendant was convicted on 48 counts of the indictment. On appeal, defendant claims that he was not proved guilty beyond a reasonable doubt and that certain evidence was obtained improperly. We affirm.

For the most part, the facts of this case were undisputed. Therefore, we need not detail the testimony of each of the witnesses but instead present a summary of the evidence relevant to our disposition. The defendant was elected to the office of regional superintendent of schools in Will County in 1986 and took office in August of 1987. Among other things, the superintendent’s office was responsible for collecting fees from various sources, including fees from persons taking the general educational development (GED) test, application fees for school bus drivers’ permits, and fees from teachers seeking to renew their teaching certificates. This money was deposited in an account designated as the institute fund. Section 3 — 12 of the School Code provides in part:

“§3 — 12. Institute fund. All examination, registration and renewal fees shall be kept by the regional superintendent, together with a record of the names of the persons paying them. Such fund shall be the institute fund and shall be used by the regional superintendent to defray administrative expenses incidental to teachers’ institutes, workshops or meetings of a professional nature that are designed to promote the professional growth of teachers or for the purpose of defraying the expense of any general or special meeting of teachers or school personnel of the region, which has been approved by the regional superintendent.” Ill. Rev. Stat. 1987, ch. 122, par. 3 — 12.

Along with the fees referred to above, various other monies were also deposited into the institute fund. These included grant money, interest payments, fees charged by the superintendent’s office for engraving of name plates and copying charges.

Much of the State’s case in chief consisted of testimony by former employees of the superintendent’s office who identified various payments authorized by defendant that were made from the institute fund account. These payments were the bases of the charges against the defendant and included: expenses related to defendant’s attendance at a political seminar; membership dues in the Boy Scouts of America; payments to individuals, including defendant’s brother, for consulting fees on matters unrelated to teachers’ institutes or workshops; tuition payments for members of the defendant’s office staff; donations to various organizations, including the Will County Sheriff’s Police Benevolent Fund, the Al-Hamid Temple, the United Pentecostal School, the Guardian Angel Home of Joliet, the Joliet Chamber of Commerce July 4th Celebration, the Joliet Drama Guild, the Joliet Breakfast Lions Club, the Kiwanis Charities and Kappa Alpha Psi Fraternity; tickets for high school football playoff games; tickets to annual dinner meetings; membership dues in the Joliet Region Chamber of Commerce and Industry; bottled drinking water for defendant’s office staff; two Will County sesquicentennial medallions; rental of parking spaces for defendant’s employees; annual membership dues in the Illinois Association of Regional Superintendents of Schools and the University of Illinois Alumni Association; tickets to a Chicago White Sox baseball game; and other expenditures unrelated to teachers’ institutes or workshops. Two of the defendant’s former employees testified that they had questioned defendant about the propriety of some of these expenditures. In addition, one of these same employees testified that defendant had stated on many occasions that the donations he was making were “going to get me lots of votes.”

The defendant testified that he asked the county for an audit shortly after he took office. He later asked the State on numerous occasions to perform an audit but it was never done. The defendant also testified about the various expenditures from the institute fund account. He felt that they were proper and justified and were for educational or education-related programs. For example, defendant stated that he made donations to the United Pentecostal School and the Guardian Angel Home of Joliet because they were doing a “tremendous job” with young people. He provided parking spaces for the women on his staff as a protective measure so they would not have to walk around after dark looking for their cars. The defendant did not feel that he was doing anything improper or illegal.

On cross-examination, defendant admitted that he was aware that the expenditure of funds his office received from issuing teachers’ certificates, from “bus receipts” and GED funds were restricted by statute. Defendant believed, however, that there was nothing wrong with the expenditures. On redirect examination, the defendant stated that his predecessor in office had made expenditures similar to those authorized by defendant. The superintendent’s office was audited shortly before defendant took office and no one had indicated to defendant that such expenses were improper. Following closing arguments, the defendant was found guilty of 48 counts of official misconduct.

Defendant first contends that he was not proved guilty beyond a reasonable doubt because the institute fund contained money from sources other than those provided for by statute. Section 3 — 12 of the School Code provides that “[a]ll examination, registration and renewal fees *** shall be the institute fund” (Ill. Rev. Stat. 1987, ch. 122, par. 3 — 12). Defendant notes that other funds, such as application fees for bus drivers’ permits, fees for GED examinations, nameplate engraving fees and copying charges, were also placed in the institute fund account. Defendant argues that the institute fund was, therefore, used as a general education fund for both deposits and expenditures. Under those circumstances, according to the defendant, it was impossible for the State to prove that the funds expended were the examination, registration or renewal fees which are restricted by section 3 — 12 for use in defraying the expenses of teachers’ institutes, workshops or meetings. We disagree.

The defendant was charged in 41 counts of the indictment with official misconduct pursuant to section 33 — 3(b) of the Criminal Code of 1961 (the Criminal Code) (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(b)). In 11 counts of the indictment the defendant was charged with official misconduct pursuant to section 33 — 3(c) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3(c)). Defendant was convicted of 37 counts under section 33 — 3(b) and of all 11 counts under section 33— 3(c). These sections provide:

“§33 — 3. Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
* * *
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority.” Ill. Rev. Stat. 1987, ch. 38, par. 33 — 3.

Each count of the indictment charged that the act which defendant was forbidden by law to perform or which was in excess of his lawful authority was “using funds restricted by Chapter 122, Section 3 — 15.12, Chapter 122, Section 3 — 12 and Chapter 95Vz, Section 6— 106.1(a), Illinois Revised Statutes, 1987 and held in account number ***, also known as the Institute Fund.” Section 3 — 15.12 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 3-15.12) relates to GED testing and provides that testing fees are to be paid into a special fund under the regional superintendent’s control and “shall be used for the expenses incurred in administering and scoring the examination.” Excess funds may be accumulated for up to three years and are then to be transferred to the institute fund. Section 6 — 106.1 of the Blinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6— 106.1) relates to the issuance of school bus driver permits and provides that application fees are payable to the regional superintendent and are to be used “expressly for the refresher courses for school bus operators.” Thus it is apparent that the bus driver permit application fees and the GED testing fees which were placed in the institute fund account were restricted to specific uses regardless of their placement in that account. The record is clear that the improper expenditures for which defendant was convicted were not related to either GED testing or bus driver refresher courses.

With respect to the other funds that were placed in the institute fund account, we reject the defendant’s argument that his convictions cannot stand because other monies were improperly commingled with those required to be deposited in the fund. These additional revenues did not convert the institute fund into a general educational fund or permit its use for any purpose beyond that prescribed by statute. Whether or not funds derived from such sources as engraving fees, copying charges and grants could have properly been used for the expenditures at issue in this case, once those monies were placed in the institute fund their use was restricted by section 3 — 12 of the School Code. The expenditure of those funds by the defendant for purposes other than those authorized were acts forbidden by law or in excess of defendant’s lawful authority within the meaning of section 33 — 3 of the Criminal Code.

Defendant next contends that the State failed to prove beyond a reasonable doubt, with respect to the charges based on section 33 — 3(b) of the Criminal Code, that defendant knew he was forbidden by law to expend the funds in the manner alleged. Defendant points out that he testified that he was simply following the past practices and procedures of prior administrations, that he attempted on numerous occasions to have an audit performed and that he did not attempt to conceal or cover up the expenditures. Defendant also notes that the presumption that a defendant knows the law does not apply to criminal proceedings under section 33 — 3(b). People v. Samel (1983), 115 Ill. App. 3d 905, 451 N.E.2d 892; People v. Campbell (1972), 3 Ill. App. 3d 984. 279 N.E.2d 123.

When faced with a challenge to the sufficiency of the evidence, the function of the reviewing court is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In this case two of defendant’s former employees testified that they questioned defendant concerning the propriety of some of the expenditures. One of those employees also quoted statements made by defendant indicating that some of the payments were politically motivated. Most significantly, defendant admitted that he was aware that the expenditure of funds received by his office for teachers’ certificates, for “bus receipts” and for GED testing were restricted by statute. Moreover, the trial judge found that much of defendant’s testimony in which he attempted to justify the expenditures was “simply incredible.” We find that there was ample evidence to prove that defendant knew he was forbidden by law to expend the funds as he did.

Similarly, defendant’s argument that he acted out of ignorance or mistake is also unavailing. As stated above, defendant was aware of the statutory restrictions on expenditures. While defendant maintains that he was acting in good faith and he believed the expenditures were proper, there was also evidence that defendant was motivated by self-interest. As our supreme court stated in a related context:

“[AJlmost every example of official conduct could be classified as a ‘mixed-interest’ case. The craftiest of corrupt politicians are experts at making their self-dealing appear to be in the best interests of their constituents. To allow instances of self-dealing to go unpunished merely because the benefit the public official receives is ‘incidental’ or because the municipality receives the lion’s share of the benefit would effectively prohibit the State from prosecuting all but the most egregious cases of official misconduct.” (People v. Scharlau (1990), 141 Ill. 2d 180, 199, 565 N.E.2d 1319,1328.)

We find that the defendant was proved guilty beyond a reasonable doubt.

Defendant also contends that the evidence seized at his office, primarily records related to the improper expenditures, should have been suppressed. Defendant maintains that the affidavit supporting the complaint for a search warrant did not establish probable cause and was based on uncorroborated hearsay.

In summary, the affidavit, signed and sworn to by a Will County sheriff’s police officer, stated that on February 14, 1990, the officer read an article in the Herald-News newspaper written by reporter Cindy Cain. The article stated that defendant had used funds from the institute fund to pay for various political, charitable and personal expenses. This information was acquired through the Freedom of Information Act. The article listed some of the expenditures made by defendant, including the election campaign seminar, alumni dues and tickets to the White Sox baseball game. The affidavit then quoted that part of section 3 — 12 of the School Code which states that the institute fund is to be used to defray expenses related to teachers’ institutes, workshops and professional meetings. The affiant then stated his belief that this information established probable cause to believe that defendant had committed official misconduct.

Defendant acknowledges that no motion to suppress was filed, nor was any objection made when defendant’s records were introduced at trial. Moreover, this issue was not raised in defendant’s post-trial motion. Defendant nevertheless urges us to consider this issue under the plain error doctrine (134 Ill. 2d R. 615(a)). Alternatively, defendant argues that his defense counsel was ineffective in failing to raise this issue in the court below.

Generally, a reviewing court will not consider a defendant’s claim of illegal search and seizure unless it was presented to the trial court. (People v. Speed (1982), 106 Ill. App. 3d 890, 436 N.E.2d 712; see also People v. Odor (1990), 197 Ill. App. 3d 328, 553 N.E.2d 1121.) In addition, to preserve an issue for review both a trial objection and a written post-trial motion raising the issue are required. (People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The evidence seized in this case was, in fact, trustworthy and there is no indication that if the State had been alerted to any alleged deficiencies in the affidavit it “could not have introduced more detailed testimony to make a showing of probable cause based other than upon the affidavit.” (Speed, 106 Ill. App. 3d at 894, 436 N.E.2d at 715.) These factors weigh heavily against application of the plain error rule. (Speed, 106 Ill. App. 3d 890, 436 N.E.2d 712.) Under the circumstances, we find that this issue has been waived.

Finally, we decline to address defendant’s claim that his trial counsel was ineffective in failing to seek suppression of the records of expenditures from the institute fund. In order to prevail on a claim of ineffective assistance of counsel, defendant must show that his counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s ineffective representation, there is a reasonable probability that the outcome of the trial would have been different. (Strickland, v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) A decision to file or not to file a motion is regarded as a matter of trial strategy which must be given great deference. (People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.) Counsel’s failure to seek suppression of the institute fund records may have been based on his assessment that such a motion would have ultimately proved futile. For the reasons stated below, we are unable to deem such an assessment unreasonable on the basis of the record before us.

The protection against unreasonable search and seizure extends only to individuals who have a reasonable expectation of privacy in the place searched or the property seized. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Arnett (1991), 217 Ill. App. 3d 626, 577 N.E.2d 773.)

“[T]he rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” (Emphasis added.) Katz v. United States (1967), 389 U.S. 347, 361, 19 L. Ed. 2d 576, 587-88, 88 S. Ct. 507, 516 (Harlan, J., concurring).

In this case it appears clear that defendant had no expectation of privacy in the institute fund records. Defendant testified that he attempted to have an audit performed on numerous occasions and that he did not attempt to conceal the expenditures. In addition, defendant was required by the School Code to submit to yearly audits by the State Board of Education (Ill. Rev. Stat. 1987, ch. 122, par. 2 — 3.17a (requiring that the audit report include amounts dispersed by the superintendent of schools, including the fund from which the disbursements were made and their purpose)), to annually present his books and vouchers for all expenditures for inspection by the county board (Ill. Rev. Stat. 1987, ch. 122, par. 3 — 6) and to annually publish in a newspaper or post in each school building under his jurisdiction an accounting of the institute fund, including the amounts distributed and the purposes for which the distributions were made (Ill. Rev. Stat. 1987, ch. 122, par. 3-12).

There remains the possibility that defendant had a legitimate expectation of privacy, protected by the fourth amendment, in the office where the records were located. (See People v. Janis (1990), 139 Ill. 2d 300, 565 N.E.2d 633 (offices and commercial buildings may be subject to fourth amendment protection).) Such a determination requires an examination of the totality of the circumstances of a particular case, including whether the defendant had a possessory interest in the area, prior use of the area, the defendant’s ability to control or exclude others, and whether defendant had a subjective expectation of privacy in the premises. (See Johnson, 114 Ill. 2d 170, 499 N.E.2d 1355; Arnett, 217 Ill. App. 3d 626, 577 N.E.2d 773; compare Janis, 139 Ill. 2d 300, 565 N.E.2d 633 (defendant had reasonable expectations of privacy in gravel area adjoining business), with Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 507 N.E.2d 1262 (no reasonable expectation of privacy in police department office used by other officers).) Given that no motion to suppress was filed in this case, however, the record contains insufficient facts to resolve this issue.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

BARRY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE L. ALFARO, Defendant-Appellant.
    Third District
    No. 3-91-0077
    Opinion filed April 2, 1992.
    Modified on denial of rehearing May 20, 1992.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marc Bernabei, State’s Attorney, of Princeton (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendant Jose L. Alfaro pleaded guilty to and was convicted of unlawful possession of a controlled substance (cocaine) with intent to deliver. He was sentenced to serve 18 years in the Department of Corrections and fined. Defendant appealed from his sentence, and this court affirmed in an unpublished order. On December 31, 1990, defendant filed a petition for post-conviction relief. The motion was dismissed by the circuit court, as was defendant’s motion to reconsider. Defendant appeals. For reasons that follow, we reverse.

The facts underlying defendant’s conviction and sentence are set forth only as necessary to explain our disposition of this appeal from the dismissal of the petition for post-conviction relief. In his petition, defendant, represented by his erstwhile appellate counsel, charged that his plea was entered involuntarily and in violation of his constitutionally guaranteed rights to due process and effective assistance of counsel. Defendant, an illiterate and national of Mexico, asserted, inter alia, that the interpreter used at the plea proceedings did not adequately explain what was being said, that he was unaware of the potentially viable defense of entrapment, and that counsel failed to present available mitigating evidence at the sentencing hearing. In his attached affidavit, defendant declared his innocence in his native tongue. Shortly after these documents were filed with the circuit court, counsel moved to withdraw, citing inability to communicate in the Spanish language. Four days later, the trial court sua sponte entered its order dismissing without hearing the post-conviction petition and without ruling on the motion to withdraw. Counsel made a timely motion for reconsideration and noted that the language barrier also prevented him from filing a certificate of compliance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). That motion was summarily dismissed sua sponte by the court as well. This appeal followed.

Defendant presents two issues for our review: (1) whether the circuit court erred in dismissing the petition without a hearing because the petition raised cognizable constitutional issues; and (2) whether post-conviction counsel’s failure to comply with Supreme Court Rule 651 requires that the cause be remanded for further proceedings.

If a petition is frivolous or patently without merit, it may be dismissed without an evidentiary hearing. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1.) As observed by our supreme court in People v. Enoch (1991), 146 Ill. 2d 44, 50, 585 N.E.2d 115, 118:

“[A]n action for post conviction relief represents a collateral attack on a prior judgment; it is not an appeal from an underlying conviction and sentence. (People v. Ruiz (1989), 132 Ill. 2d 1, 9; People v. Free (1988), 122 Ill. 2d 367, 377; People v. James (1986), 111 Ill. 2d 283, 290.) To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of Federal or State constitutional rights in the proceedings that produced the judgment under attack. (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1.) Rulings on issues that were previously raised at trial and on direct appeal are res judicata, and issues that could have been raised in the original proceedings, but were not, will be deemed waived. Ruiz, 132 Ill. 2d at 9; People v. Silagy (1987), 116 Ill. 2d 357, 365.”

The question before us is whether defendant’s petition contains allegations which present the gist of a meritorious constitutional claim. (People v. Lawrence (1991), 211 Ill. App. 3d 135, 138, 569 N.E.2d 1175, 1177.) With certain significant differences, the situation presented by this case is analogous to People v. Vitale (1954), 3 Ill. 2d 99, 119 N.E.2d 784. Vitale, a Sicilian national, was charged with the murder by arson of 10 persons. He pleaded not guilty, and his cause proceeded to trial. After the State completed its case in chief, defendant changed his plea to guilty on all 10 counts. He was sentenced to 10 concurrent terms of imprisonment for 199 years each. In his post-conviction petition, defendant averred that he understood only the Sicilian dialect of the Italian language. He did not understand the English language or any other Italian dialect. Vitale further alleged that he was beaten by the police and intimidated into signing a confession of a codefendant with an “X” and that the court proceedings were not translated to him such that he could understand what was said. Finally, defendant alleged that his case had not been properly presented by counsel and that his plea of guilty was involuntary because counsel had coerced him by telling him that a jury would likely impose the death penalty.

The circuit court in Vitale heard defendant’s petition and the State’s response to it. The State established that defense counsel was of Italian extraction and that he spoke both Neopolitan and Sicilian dialects. Transcripts of the trial proceedings established that counsel had painstakingly explained to defendant, in Italian, the consequences of the guilty plea and that defendant understood. Likewise, testimony by police officers present when defendant had placed his mark on his codefendant’s confession was introduced to refute defendant’s post-conviction claim of involuntariness. At the close of the hearing, the trial court denied post-conviction relief.

On review, the court carefully examined the record and concluded that the trial court had not erred. The court prefaced its analysis, however, with comments that we find particularly instructive for our resolution of this case:

“The intent of our law is to secure to a person charged with crime the right to a trial by jury unless he should, after an opportunity to fully and fairly understand the consequences of a plea of guilty, waive that right. Ordinarily a waiver sufficiently appears where recitals in the record show the defendant was duly informed and admonished by the court. But in cases where defendant does not understand the English language, due process requires some further showing that he comprehends the meaning and effect of his plea. (Marino v. Ragen, 332 U.S. 561[, 92 L. Ed. 170, 68 S. Ct. 240].) The presence of such handicaps may lend a different character to objections which would otherwise be insufficient to question the legality of the proceeding. (See People v. Nitti, 312 Ill. 73[, 89, 143 N.E. 448].) It is also essential to a valid waiver that it result not from fear and coercion but from voluntary choice.” Vitale, 3 Ill. 2d at 103, 119 N.E.2d at 786-87.

Unlike Vitale, the record before us presents only defendant’s affidavits of inability to understand the proceedings despite the assistance of a Spanish translator during court appearances. There is no indication of record that the public defender representing defendant at the plea proceedings, the prosecuting attorney, the court reporter or the trial judge spoke or understood the Spanish language. The record discloses only the presence of the translator. It does not reflect what she said to the defendant, and it does not reflect what defendant said to her. From all appearances, the proceedings were conducted entirely in the English language, including defendant’s responses to the court’s admonitions. We may assume otherwise, but where the degree and accuracy of translations have been called into question, such an assumption cannot justify the denial of an evidentiary hearing. Defendant alleges that a full translation of the proceedings was not provided, but rather only synopses of what the translator deemed to be of interest to him. Nothing appears in the record before us to refute this charge. Defendant’s allegations go to the heart of constitutional due process of law and should not have been summarily dismissed.

Similarly, we find defendant’s allegations of ineffectiveness of trial counsel, standing unchallenged in the record on appeal, state cognizable constitutional issues and require an evidentiary hearing. Post-conviction charges of ineffective assistance of counsel are frequently reviewed on appeal because the bases for such charges (e.g., failure to investigate defenses, failure to produce witnesses in mitigation, failure to consult or communicate with defendant), as here, generally do not appear in the trial record.

The standard for determining whether counsel’s performance fell below the constitutional mandate requires determinations of incompetence and prejudice. (People v. Jones (1991), 144 Ill. 2d 242, 253-54, 579 N.E.2d 829, 833, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064, and People v. Albanese (1984), 104 Ill. 2d 504.) The incompetence prong in this case is satisfied upon a showing that counsel’s advice to enter a blind plea of guilty fell below the range of competence demanded of attorneys in criminal cases. (Jones, 144 Ill. 2d at 254, 579 N.E.2d at 834, citing McMann v. Richardson (1970), 397 U.S. 759, 770-71, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1448-49.) “To show prejudice, the defendant must prove that ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” (Jones, 144 Ill. 2d at 254, 579 N.E.2d at 834, quoting Hill v. Lockhart (1985), 474 U.S. 52, 59, 88 L. Ed. 2d 203, 210, 106 S. Ct. 366, 370.) The Hill Court explained the analysis in practical terms:

“In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” 474 U.S. at 59, 88 L. Ed. 2d at 210, 106 S. Ct. at 370-71.

In this case we find that defendant’s allegation that trial counsel failed to investigate a viable defense based on entrapment, if proved, is not so patently meritless as to justify an outright dismissal of the post-conviction petition. Nor do we agree with the State’s contention that the record of defendant’s sentencing hearing conclusively establishes the frivolity of defendant’s allegations that he was not predisposed to traffic in drugs.

Because we find that defendant’s post-conviction petition was improperly dismissed without an evidentiary hearing, we need not address defendant’s second issue based on counsel’s failure to file a certificate of compliance with Supreme Court Rule 651. This cause is remanded to the circuit court of Bureau County for further proceedings.

Reversed; cause remanded.

STOUDER and GORMAN, JJ., concur.


author: JUSTICE LEWIS

text:
    JOSEPH SLIMACK et al., on Behalf of Themselves Indiv. and All Other Persons Similarly Situated, Plaintiffs-Appellants and Appellees, v. COUNTRY LIFE INSURANCE COMPANY et al, Defendants-Appellees and Appellants.
    Fifth District
    No. 5—90—0385
    Opinion filed April 14, 1992.
    Rehearing denied May 21, 1992.

      Patrick M. Young and J. Michael Weilmuenster, both of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., and Robert Wells, of Pessin, Baird, Belsheim & Wells, both of Belleville, for appellants.
    Duane C. Quaini, Kirk R. Ruthenberg, and Roger K. Heidenreich, all of Sonnenschein, Nath & Rosenthal, of Chicago, and Allen D. Churchill, of Churchill, McDonnell & Hatch, of Belleville, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

The applications of both the plaintiffs and the defendants for interlocutory appeal by permission were granted pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). The plaintiffs seeking to maintain this class action suit pursuant to section 2 — 801 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 801) are former agents and the widow of a former agent of the defendants, Country Life Insurance Company, Country Mutual Insurance Company, and Country Casualty Insurance Company, which are related corporations and are hereafter referred to as “Country Companies.”

The plaintiffs filed a complaint on October 21, 1981. In their amended complaint filed on October 28, 1988, they allege that they bring the action on behalf of themselves and all present agents of the defendants and all persons who worked during the 10-year period immediately preceding the filing of this action as independent contractors of the defendants for sale of insurance policies under two contracts attached to the complaint. Each of defendants’ agents during the time in question was required to execute both of these contracts or contracts substantially similar to them. The contracts are apparently often referred to as the “1970 contract.” Plaintiffs allege that they suffered damages in one or more of the following ways:

“A. Had accounts reassigned in a manner inconsistent and contrary to the express provisions of their contracts with Defendants thereby suffering loss of commissions due to them.
B. Suffered wrongful threats of termination for alleged failure to meet production requirements not specified by their contracts with defendant [sic] and the emotional distress resulting therefrom.
C. Were wrongfully terminated for alleged failure to meet production requirements not specified by their contracts with defendant [sic] or refusing to acquiesce to the reassignment of accounts they were servicing thereby suffering loss of all commissions and the emotional distress resulting therefrom.
D. Were wrongfully compelled to resign by threats of termination and/or defendant’s [sic] refusal to comply in good faith with the terms and provisions of their contract thereby suffering loss of all commissions and the emotional distress resulting therefrom.”

The plaintiffs allege that the defendants’ actions constituted a breach of the contracts between members of the plaintiffs’ class and defendants and, in addition, constituted one or more tortious acts, namely, conversion, intentional interference with prospective business advantage and/or oppressive conduct by economic duress of the members of the class. They seek compensatory damages for all breaches of contract and punitive damages for the tortious conduct alleged.

Following an extensive hearing conducted in September and October of 1988 concerning the certification of the class, the trial court entered an order on April 16, 1990, certifying as members of the plaintiffs’ class persons included in the following description:

“All agents, if any, of Defendants who entered into the 1970 contract with defendants who had accounts reassigned in violation of the contract and those agents, if any, who were damaged by threats of termination or termination for failure to meet production requirements or for refusing to consent to the reassignments; all agents if any, who suffered economic duress by reason of defendants’ alleged breach of the 1970 contract.”

The trial court expressly found that certification of a class would avoid multiplicity of effort by counsel and the court and repeated appearances by the same witnesses, that uniformity and fairness of decision are more likely to result if all claimants are joined in the same proceeding, and that some claimants may not be able to secure legal representation if they must seek counsel individually. The trial court found further:

“That, notwithstanding defendants’ willingness to admit that some factual and legal issues are not contested, if nothing else, the common (factual/legal) question remains as to whether defendant [sic] breached its [sic] (standard form) contracts with plaintiffs by reassigning (block assignments) accounts. Legal/ factual questions involving contractual provisions and claimed violations thereof, definitions of terms, corporate actions, corporate knowledge and pronouncements may very well be common to plaintiffs; such questions preponderate over individual questions such as variance in computation of damages.”

In its order the trial court expressly rejected the defendants’ contention that plaintiffs cannot maintain this class action because each plaintiff would have to rely on a separate set of proofs, adding:

“The great bulk of the evidence would be the same in each case; the fact that evidence may vary to some degree is not controlling. In Prucell [sic] v. Hertz Corp. 530 N.E.2d 994, where the laws of different states were involved and there were many different types of leasing agreements, different costs and liabilities, the court held class certification was proper. Purcell cited Miner v. Gillette, 428 NE2d 479 indicating that the existence of individual issues, a separate determination of individual damages, multiple theories of recovery, or even the inability of some class members to obtain relief *** will not *** defeat a class certification of the common questions of fact or laws are otherwise predominant.”

The trial court found that there is

“no conflict apparent at this time within the members of the proposed class. While several plaintiffs may seek recovery of commissions from the same account, they do not seek reassignment to them of the particular account; they seek money damages, not from one another but from defendants. Furthermore, at this time it does not appear that this litigation threatens the financial viability of defendants.”

The trial court found further that the representative parties and their counsel will fairly and adequately protect the interest of the class and that this class action is an appropriate method for the fair and efficient adjudication of the controversy.

In an order entered June 5, 1990, the trial court determined that the following questions should be certified for presentation to this court pursuant to Rule 308:

“1. Whether the trial court erred in certifying the following class ‘All agents, if any, of Defendant [sic] who entered into 1970 contract with defendants who had accounts reassigned in violation of the contract and those agents, if any, who were damaged by threats of termination or termination for failure to meet production requirements or for refusing to consent to reassignments; all agents, if any, who suffered economic duress by reason of defendant’s [sic] alleged breach of the 1970 contract.’
2. Whether the trial court complied with the requirements of Illinois Revised Statutes, 1987, Ch. 110, §2 — 801 et seq. in certifying the class.
3. Whether definition of the class meets the requirements of Illinois Revised Statutes, 1987, Ch. 110, §2 — 801 et seq.
4. Whether the trial court erred in finding that block (multiple) reassignment of accounts was not a per se violation of the 1970 contract between defendants and their agents.”

The trial court certified further that either party was granted leave to petition this court for review of the issues pursuant to Rule 308.

The defendants take the position that the trial court did, in fact, err with respect to the first three issues but did not err with regard to the fourth issue. The plaintiffs take the opposite stance, contending that the trial court did not err with respect to the first three issues but, concerning the fourth issue, did err in finding that block reassignment of accounts was not a per se violation of the 1970 contract between the parties. Plaintiffs do urge, however, a different, “more workable and manageable” definition of the class than that determined by the trial court.

Certification of class actions in Illinois is governed by section 2 — 801, which provides:

“An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 801.

The defendants assert that the three broad issues relating to class certification accepted for appeal boil down essentially to one question, whether the trial court properly certified this cause as a class action. Defendants do not dispute that the first requirement, that of numerosity, has been fulfilled. They do, however, dispute that the second and third requirements of section 2 — 801 have been met, addressing particularly the second of them, that of predominating common questions. The defendants urge us to reverse the trial court’s certification of the class on two grounds especially: (1) the class certified by the trial court does not comply with section 2 — 801 because both the trial court’s definition and the nature of the plaintiffs’ claims in their amended complaint would require individual determinations of liability and causation and (2) in certifying the class the trial court failed to comply with section 2 — 802 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2-802).

Certification of a class is within the sound discretion of the trial court and will be disturbed only if there is an abuse of that discretion or if impermissible legal criteria are applied. (Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 994.) As long as there are questions of fact or law common to the class and these predominate over questions affecting only individual members of such class, the statutory requisite is met. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) The finding of a common question of fact or law cannot alone satisfy this statutory requirement because such a common question must “predominate” over the individual questions that may be involved. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) Satisfaction of the requirement pertaining to predominating common questions of fact or law necessitates a showing that successful adjudication of the purported class representatives’ individual claims will establish a right of recovery in other class members. (Scott v. Ambassador Insurance Co. (1981), 100 Ill. App. 3d 184, 426 N.E.2d 952.) Once the basic determination has been made that a predominating common question of fact or law exists, the fact that there may be individual questions will not defeat the predominating common question. (Miner, 87 Ill. 2d 7, 428 N.E.2d 478.) The requirement of individual proofs should not be a bar to a class action. (Steinberg, 69 Ill. 2d 320, 371 N.E.2d 634.) In a class action it is appropriate to litigate the questions of law or fact common to all members of the class and, after the determination of the common questions, to determine in an ancillary proceeding or proceedings the questions that may be peculiar to individual members. (McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565.) In a class proceeding, if certain individual questions exist that may require individual determinations, these individual questions may be handled within subclasses, as long as the common issues predominate. (Purcell, 175 Ill. App. 3d 1069, 530 N.E.2d 994.) Furthermore, if at some later time in the litigation, the subclassification becomes unmanageable, the court, of course, always has the option to set aside the class certification or a portion of it. Purcell, 175 Ill. App. 3d 1069, 530 N.E.2d 994.

We note initially that none of the numerous and apparently voluminous exhibits admitted at the certification hearing have been included in the record for review. In the “Agents’ Agreement,” attached to the complaint as exhibit “B,” paragraph 12 states as follows concerning “Commissions and Responsibilities”:

“Upon an Agent’s termination or transfer to another Agency, or in any case to better serve a policyholder or upon written request of a policyholder, the credit for commission and the responsibility for servicing the policyholder may be assigned (i) by Agency Manager on policies assigned to his Agency in the County of Primary Responsibility or (ii) by each Company on policies assigned to his Agency located outside the County of Primary Responsibility.”

The plaintiffs contend that these are the only circumstances under which an agent’s accounts may be reassigned but that accounts were, in fact, reassigned in blocks of multiple accounts, particularly to new agents, in violation of these terms of the contract. In their complaint plaintiffs allege that the defendants knowingly, wrongfully, and intentionally commenced and continued schemes or plans to violate their contracts with the plaintiffs’ class or, in the alternative, breached their contracts with plaintiffs’ class by authorizing or ratifying actions by defendants’ county managers which violated the terms of the contract. Plaintiffs allege that the wrongful actions of the defendants “were in furtherance of Defendants!”] plans to increase the number of new agents without the capital investment which otherwise would have been required to accomplish said purpose, thereby allowing Defendants additional capital for investment and expansion.” The hiring of new agents during this time, plaintiffs state, was in furtherance of the defendants’ comprehensive marketing plan to increase its sales force and, thus, its market share. Plaintiffs claim further that accounts were improperly reassigned in such blocks in order to coerce agents into selling more life insurance, which is more profitable to defendants than is casualty insurance. The plaintiffs contend that the “uniform plan or scheme,” practiced in Illinois, to violate the provisions of the contract is the “predominant factual/legal question and predominates over all other individual issues.” Plaintiffs assert that the defendants’ wrongful practice of financing new agents at the expense of their existing agents requires no individual determination. “Financing new agents by means of reassignments of accounts was in violation of the contract between the parties,” plaintiffs urge, “and a right of recovery exists in favor of each proper class member.”

With respect to the second requirement of section 2 — 801 pertaining to predominating common questions, the defendants contend that the class certified by the trial court does not comply with this requirement, in part, because the trial court’s definition of the class recognizes that each class member must prove his right to be a class member and his right to recover under one or more of the theories alleged in the amended complaint. The defendants maintain that the nature of each of the allegations of the plaintiffs’ amended complaint demonstrates the trial court’s error in permitting this cause of action to proceed as a class action because each allegation requires the trial court to make independent factual and legal determinations of liability and causation as to each potential class member. Defendants argue that because the contract clearly contemplates reassignments for the three reasons stated above, individual determinations would need to be made as to whether each reassignment violated the contract. Each agent’s case will require a judicial determination, defendants say, of the reasons for the particular reassignments of his policies to other agents and then a judicial finding of whether, in light of those reasons, the reassignments are in breach of the contract as a matter of law. Defendants assert that whether a reassignment occurred in violation of the contract is not a common question but one that must be resolved as to each potential class member; for this reason, this case is inappropriate for resolution as a class action. Defendants state that each reassignment must be analyzed separately to determine whether the reassignment, which was made at the discretion of each agency manager, was undertaken “to better serve a policyholder” in accord with the contract. They argue that the “mere fact that an agent had accounts assigned away from him does not establish a right of recovery” because the accounts could have been reassigned “to better serve a policyholder.” Concerning the allegations of wrongful or threatened termination, defendants urge that these allegations require individual proof of the factual circumstances relating to each agent’s actual or threatened termination. Defendants suggest that there may be a “vast array” of reasons for the termination of an agent by the defendants, “many of which revolve around the individual agent’s performance and the specifics of his relationship with Defendants.” Whether specific terminations or “so-called forced resignations” occurred because of defendants’ improper conduct or some “independent” reason, defendants argue, must be determined according to the circumstances of each such incident. The plaintiffs’ claim of economic duress will, defendants say, involve inquiries into the state of mind of each plaintiff. Similarly, defendants argue, the plaintiffs’ claim of intentional interference with prospective business advantage will require individual inquiries concerning the defendants’ intent to interfere without sufficient justification for doing so under the facts and circumstances pertaining to each particular class member. In sum, defendants urge, no common issue of fact or law predominates in this case.

The defendants rely heavily upon Key v. Jewel Cos. (1988), 176 Ill. App. 3d 91, 530 N.E.2d 1061, in which the plaintiffs sought class certification concerning a franchise agreement with the defendant White Hen Pantry, at the time a division of Jewel Companies, Inc. The plaintiffs asserted a claim of breach of fiduciary obligation, a claim of fraudulent misrepresentation, a claim under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 12V-k, par. 261 et seq.), and a claim under the Franchise Disclosure Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 701 et seq.). Although the case was initially conditionally certified as a class action, the class allegations were later stricken by the trial court on the basis that any common questions of law were overshadowed both by questions of fact and by particular applications of the law that would exist as to individual franchisees. On review the court determined initially that the trial court had not used an improper legal standard by the statement in its order that a favorable ruling as to a named plaintiff would not necessarily establish a right of recovery in the other members. In Key the plaintiffs asserted that the case warranted certification of a class action based on the following alleged common questions of law and fact: (a) whether Jewel breached its fiduciary duty to franchisees of White Hen Pantry; (b) whether Jewel failed to disclose to franchisees material facts about the operation of the White Hen Pantry system; (c) whether Jewel made adequate disclosure to prospective franchisees of the past economic performances of White Hen Pantry stores; and (d) whether Jewel’s conduct violated the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Franchise Disclosure Act. The reviewing court concluded that

“these are not common questions but rather individual questions the resolution of which turns on specific facts as to the relationship between individual franchisees and White Hen Pantry and the manner in which individual franchisees operated their stores. Evidence in the record supports this view in that it shows that different franchisees realized significantly different operating results in different periods of time in different WHP stores. In fact, subsequent franchises at the store locations of the named plaintiffs all were economically profitable according to an affidavit filed by defendant’s controller. There is no evidence to suggest that the experience of the plaintiffs, who were involuntarily terminated franchisees, is in any way representative of a class that would include all franchisees.” (Key, 176 Ill. App. 3d at 97, 530 N.E.2d at 1064.)

The reviewing court stated further that

“[t]he matter here involves claims about various documents and oral representations as well as different financial and operating experiences of numerous franchisees. Not only would the named plaintiffs and each of the other class members have to prove that their franchises failed, each of them also would have to prove that White Hen Pantry’s conduct caused the failure. Where individual determinations of proximate cause would be required which predominate over common questions of law and fact, a class action will not be certified.” Key, 176 Ill. App. 3d at 98, 530 N.E.2d at 1065.

As the trial court did, the plaintiffs rely on Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478, and Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 994. In Miner the supreme court found that the requirement of a predominating common question of fact or law was met in a case in which the members of the plaintiff class claimed that they had not received a free Accent Table Lighter as promised in the defendants’ promotion of its disposable butane lighters. When the demand for such lighters had exceeded the supply, the defendant had been unable to fill all the requests. The defendant contended that the elements of reliance, satisfaction, waiver, and consideration were different in each case and, thus, defeated the requirement of a common question of fact or law. The court noted that the case was predicated upon a series of essentially identical transactions by thousands of purchasers, including Illinois residents, which were founded upon and arose out of identical language in the promotional offer prepared by the defendant. Further, the class of Illinois residents had a common question of law, that is, the law of Illinois, so that there was no possibility that different questions of law would predominate. Having determined that the requirement of a predominating question of fact or law was easily met, the court observed that once that basic determination has been made “the fact that there may be individual questions, as proposed by defendant, will not defeat the predominating common question.” Miner, 87 Ill. 2d at 19, 428 N.E.2d at 485.

In Purcell the plaintiff brought a class-action suit on behalf of a nationwide class to recover security deposits and accrued interest on security deposits that the defendant required pursuant to the terms of its automobile lease contracts. The trial court denied class certification, finding that individual questions of fact and law predominated and that the plaintiff could not provide adequate representation for a class action. The case was tried as an individual action under Illinois law. Upon the plaintiffs’ appeal, the defendant asserted that the common questions of fact and law did not predominate over the individual questions. The defendant contended no common issues of fact or law existed because each lease transaction was, in fact, dissimilar. The defendant asserted that there were differences in the terms of each lease and the amounts required and returned for each security deposit under each lease, which, defendant argued, necessarily depended upon the individual facts; thus, defendant urged, there could be no commonality. The defendant claimed further that various factors had to be examined in each case before a lessee was entitled to a return of the security deposit, including the following: the lease itself, any liability for damage to the vehicle, excess mileage on the vehicle, and any other lease charges incurred by the individual lessee. These factors, the defendant asserted, destroyed the possibility of class treatment for the security deposits in the plaintiff’s putative class. The defendant contended further that, because the State laws varied greatly concerning the right to interest on security deposits and on the method of maintaining them, the plaintiff could not show any common issue of law as well. Reversing the judgment of the trial court which denied certification of the plaintiff’s claim for a class action, the court on review found that the record and the allegations in the plaintiff’s complaint demonstrated that, at that time at least, the questions of fact and law did predominate over any individual questions. The common questions of fact and law presented, the court stated, were: whether the defendant could lawfully withhold the security deposits at the termination of the auto lease in the absence of a written request by the lessee for a return of the money; whether the defendant was required legally to pay interest on the security deposits during the period they were held by the defendant; and whether the defendant could legally commingle the security deposits with its other funds during the time in question. The court noted further that it was not persuaded by the defendant’s argument that the auto leases were individually negotiated, particularly as they related to security deposits, or that any individualized nature of these leases destroyed the basis for a class action:

“From the allegations and the evidence presented in the case below, it is clear that the lease provisions relating to the security deposits were similar in form to the provisions in all of Hertz’ other auto leases. Thus, P&W has alleged a scenario in which a class action is an especially appropriate procedure to resolve such questions. Furthermore, the allegations of P&W are supported by the undisputed evidence in the record which establishes that Hertz had a policy to retain security deposits after termination of the lease, unless the lessee requested the return of the deposit in writing. P&W’s allegations concerning the security deposit provisions, the interest, and the commingling are common to all of Hertz’ leases, and Hertz has offered no evidence to dispute these assertions.” Purcell, 175 Ill. App. 3d at 1077, 530 N.E.2d at 1000.

In the instant case, unlike Key, there is evidence in the record to suggest that the experience of the plaintiffs was representative of a class that would include all agents who had had accounts reassigned in blocks by the defendants during the time in question, not “to better serve a policyholder” but in order to finance new agents or to attempt to coerce the agents to sell more life insurance, which was more profitable to Country Companies than was the sale of casualty insurance, all in violation of the form agreement between the agents and Country Companies. The plaintiffs argue, we think correctly, that contrary to the defendants’ assertion,

“there will be no need to have individual inquiries into dealings between particular agency managers and its agents, actual performance by the agent, market factors existing in each county in Illinois, the needs of individual insureds, the economic circumstances of each individual agent, and the state of mind of each agent and agency manager. These are only issues which the Defendants may wish to raise as to certain individual class members.”

The plaintiffs argue that in both Miner and Purcell liability to the class turned on a common uniform event or a common practice uniformly applied and that the present case concerns a uniform practice, namely, the uniform scheme or plan carried out statewide by the defendants to increase their sales force by arbitrarily taking blocks of accounts from existing agents and reassigning them to finance new agents. We consider the nature of the individual questions asserted by the defendants here not unlike those urged by the defendant in Purcell, in which the court reversed the judgment of the trial court denying certification of the plaintiff’s claim for a class action. Therefore, we find Purcell particularly instructive. The record and the allegations of the plaintiffs in their amended complaint reveal that plaintiffs’ claims center upon the defendants’ statewide plan and practice of reassigning blocks of accounts from existing agents, not to better serve a policyholder, but to finance new agents or to coerce existing agents to meet certain production requirements not included in their contracts with the defendants. We conclude that these are questions of fact and law common to the class that predominate over questions affecting only individual members of the class. Hence, the requirement of section 2 — 801 pertaining to predominating common questions of fact or law has been met.

With respect to the third requirement of section 2 — 801, that the representative parties will fairly and adequately protect the interest of the class, the defendants urge that the plaintiffs are not adequate class representatives because of two inherent conflicts with members of the purported class. First, defendants say, some of the plaintiffs benefited from the practice of reassigning policies from one agent to another because they had a greater number of policies assigned to them than were reassigned to others while other agents were damaged by the same practice; thus, these plaintiffs have conflicting interests with those agents who had a net loss from this practice. Second, defendants argue, the named plaintiffs are all former agents of the Country Companies and cannot fairly and adequately represent the interests of the large number of present agents included within the certified class. There must be no conflict of interest between the representative and the represented class members. (McCabe v. Burgess (1978), 57 Ill. App. 3d 450, 373 N.E.2d 327, rev’d, in part on other grounds (1979), 75 Ill. 2d 457, 389 N.E.2d 565.) However, the trial court expressly found that there is no conflict apparent at this time between members of the proposed class and that, although several plaintiffs may seek recovery of commissions from the same account, they seek, not reassignment of a particular account, but money damages, not from other agents, but from the defendants, whose financial viability appears not to be threatened by this litigation. The record does not suggest that the finding of the trial court in this regard was in any way unwarranted. Under the circumstances, there does not appear to be an inherent conflict between former and present agents of the defendants that would defeat certification of the class. Thus, we must disagree with the defendants’ contention that the third requirement of section 2 — 801 has not been satisfied.

Finally, the defendants challenge the trial court’s certification of the class because, in contravention of the requirements of section 2 — 802, they say, a prejudicial delay in certifying the class occurred. The plaintiffs maintain that there has been no prejudicial delay in the certification of the class. Section 2 — 802(a) provides: “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it may be so maintained and describe those whom the court finds to be members of the class.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 802.) Although the defendants and the plaintiffs make numerous citations to the record in support of their respective positions, the apparently abbreviated record provided to us for review does not contain certain cited portions and is, as a consequence, inadequate to make the determination defendants ask us to make. The burden is on the party who brings a cause to a reviewing court to present a record that fairly and fully presents all matters necessary and material for a decision of the questions raised. (Interstate Printing Co. v. Callahan (1974), 18 Ill. App. 3d 930, 310 N.E.2d 786.) Accordingly, we make no determination concerning the merits of this contention.

In the instant case the trial court made numerous findings pertaining to the certification of the class, which are supported by the record. The trial court neither applied impermissible legal criteria nor abused its discretion in certifying the class. Hence, we may not disturb its certification.

As we have indicated, the plaintiffs have proposed another definition of the class, which they consider to be more precise than that of the trial court and which they ask us to adopt. Their proposed definition includes numerous subclassifications. However, the trial court may during the course of this proceeding adopt a system of subclassification if it perceives a need to do so. (See Purcell, 175 Ill. App. 3d 1069, 530 N.E.2d 994.) Accordingly, we decline to modify the trial court’s admittedly proper definition of the class.

We turn now to the plaintiffs’ contention that the trial court erred in finding that block reassignment of an agent’s accounts was not a per se violation of the 1970 contract between the defendants and agents. The plaintiffs argue that the words “a policyholder” in the contract are singular in nature and that “the express language of the contract allows for reassignment on an individual basis only when there has been a determination that a particular policy holder would be better served by another agent.” (Emphasis in original.) Thus, plaintiffs urge, the contract does not provide for block transfers of accounts. Plaintiffs ask us to rule that “a policyholder” is singular and, for that reason, does not provide for block transfers of accounts. Concerning the question of block reassignments, the trial court found as follows:

We agree with the trial court that an assignment of more than one account at a time is not a per se violation of the contract. Plainly, the determination could be made at any one time that reassignment of more than one of an agent’s accounts would better serve the policyholders in question. The reason for the reassignment, not the fact that more than one account is reassigned at a time, is, we think, determinative.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID P. O’BRIEN, Defendant-Appellee.
    Second District
    No. 2—91—0034
    Opinion filed March 24, 1992.
    Rehearing denied May 28, 1992.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a)(1) (134 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Kane County which granted the motion of defendant, David R O’Brien, to quash his arrest and suppress evidence. The sole issue raised by the State on appeal is whether the trial court erred in granting defendant’s motion to quash his arrest and suppress evidence regarding the offenses of driving under the influence of alcohol and speeding. The State does not argue the propriety of the trial court’s rescission of defendant’s summary suspension, and, therefore, we do not address that portion of the trial court’s judgment.

On September 30, 1990, defendant was charged with the offenses of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501(a)(2)) and speeding 35 miles per hour in a 25-mile-per-hour zone (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 601). Also on that date, Officer Craig Bahe prepared a “law enforcement sworn report” and served notice upon defendant of the summary suspension of his driver’s license pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.1) based on his refusal to submit to a breathalyzer test.

On October 10, 1990, defendant filed a petition to rescind the statutory summary suspension of his driver’s license and a motion to quash his arrest and suppress evidence. A hearing regarding defendant’s petition and motion was held on December 18,1990.

Michael Bergmann, a friend of defendant, testified that he and defendant went to a bar at about 11:30 p.m. on September 29, 1990. They each had “maybe two beers” at the bar. They left the bar at approximately 1:30 a.m. and drove to a party but did not stay or have anything to drink there. They then left in Bergmann’s car and went to Bergmann’s house. Defendant left his car at the party. At Bergmann’s house they had pizza and soda. Bergmann drove defendant to his car at approximately 3:30 a.m. Bergmann stated that defendant was not under the influence of alcohol at that time.

Officer Craig Bahe testified that he observed defendant’s vehicle at approximately 4 a.m. on September 30, 1990. He followed defendant’s vehicle for some time through a residential area. Bahe was attempting to catch up with the vehicle to get a “pace” or a reading of the vehicle’s speed. The speed limit was 25 miles per hour, and Bahe was travelling approximately 40 miles per hour. Bahe estimated that defendant was travelling in excess of 40 miles per hour but was never able to get a reading of his speed. Defendant eventually pulled into a driveway, and Bahe followed him.

Bahe testified that defendant got out of his vehicle. Bahe spoke with him and observed that defendant had a moderate odor of alcohol on his breath, had difficulty with his balance, had bloodshot eyes and had slurred speech. Bahe then asked defendant to perform field sobriety tests. Defendant failed the horizontal gaze nystagmus (HGN) test and the one-leg stand test. Bahe testified that he had defendant attempt the one-leg stand test on the driveway. The driveway was pitched but did not have a severe slope. Bahe placed defendant under arrest before the walk and turn test was completed. Defendant was not able to keep his balance while he was walking during that test. It was Bahe’s opinion that defendant was under the influence of alcohol at that time. Bahe testified that he had written the most DUI arrests for St. Charles in 1989 and 1990.

Defendant testified that, on the night of his arrest, he drank two or three 12-ounce beers at Sam’s Tavern between 11:30 p.m. and 1:30 a.m. He was very tired when he was driving home from Bergmann’s house at around 4 a.m. but was not under the influence of alcohol and was not having any difficulty driving. Defendant testified that he was driving between 30 and 35 miles per hour. He stated that the speed limit in the residential area was 25 miles per hour. Defendant testified that he told Bahe he was in a hurry to get home. He also testified that Bahe asked him if he had had anything to drink that night and that he told Bahe that he had a couple of beers earlier.

Defendant testified that he was unable to do the one-leg stand test. He stated that the driveway at his residence is pitched at a 45-degree angle, and he kept losing his balance. Defendant stated that he had completed half of the walk and turn test when Bahe arrested him.

Following this testimony, the trial judge made the following remarks:

“I’ve been hearing hearings of this nature for a number of years and I’ve never encountered this particular officer before. I thought his testimony and his mannerisms on the witness stand were incredible. He would smile and chuckle at inappropriate times. He would have a convenient lapse of memory when being questioned by the attorney for the Defendant.”

The judge also commented that he thought that Bahe was simply following defendant because he saw another vehicle on the road at that late hour.

He finally stated:
“So I think that the Defendant has met his burden of proof. I’m not satisfied that there was any reasonable grounds to believe that the Defendant was driving under the influence. I emphasize the word ‘driving.’ I haven’t heard a single significant fact about his driving that indicates that he was impaired in any way.
At 4:00 in the morning he’s got a ticket for going 35 in a 25 zone. That’s probably one of the cheapest speeding tickets I’ve seen in a long time, so I don’t think that we have anything there.”

He then granted defendant’s petition to rescind the summary suspension of his driver’s license and also granted his motion to quash arrest. The State filed a timely certificate of impairment and notice of appeal.

On appeal, the State is not contesting the order which granted defendant’s petition to rescind the statutory summary suspension of his driver’s license. The State argues, however, that the trial court erred in granting defendant’s motion to quash arrest and suppress evidence regarding the offenses of speeding and DUI. The State contends that the record is clear that Babe’s stop of defendant was valid because defendant’s own testimony established that he committed the offense of speeding. The State asserts that the court’s order quashing defendant’s arrest and suppressing evidence should be reversed and the cause should be remanded for a determination of whether Bahe had probable cause to arrest defendant for DUI.

Defendant has not filed an appellee’s brief in response. We will, however, consider the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

With respect to a motion to suppress evidence, a defendant has the burden of proving that the search or seizure was unlawful. (See People v. Janis (1990), 139 Ill. 2d 300, 308.) A trial court’s ruling regarding a motion to suppress evidence will not be overturned unless it is manifestly erroneous. People v. Redd (1990), 135 Ill. 2d 252, 289.

In this cause, we must agree with the State that the trial court erred in determining that the stop of defendant was improper. In assessing the credibility of the witnesses at the hearing, the trial court determined that Bahe was not a credible witness. However, the State correctly points out that defendant himself testified that he was driving between 30 and 35 miles per hour and that the speed limit was 25 miles per hour.

The proper standard to apply in determining whether the stop of a defendant’s vehicle is justified is whether the police officer had a reasonable, articulable suspicion of criminal activity. (People v. Thomas (1990), 200 Ill. App. 3d 268, 280; People v. Repp (1988), 165 Ill. App. 3d 90, 94.) A traffic violation, such as exceeding the posted speed limit, provides more than a reasonable basis for stopping a vehicle. (People v. Sorrells (1991), 209 Ill. App. 3d 1064, 1069; see also People v. Washburn (1990), 197 Ill. App. 3d 655, 657; People v. Lillig (1988), 174 Ill. App. 3d 647, 649; People v. Houlihan (1988), 167 Ill. App. 3d 638, 643.) We therefore conclude that the investigatory stop of defendant’s vehicle was proper as defendant’s testimony established that he was speeding at the time of the stop. We also conclude that Bahe had probable cause to arrest defendant for the offense of speeding. That arrest should not have been quashed by the trial court.

As the State has recognized, however, this does not end our inquiry. Defendant also presented evidence at the hearing regarding whether Bahe had probable cause to arrest him for DUI. The State argues that the trial court based its decision upon its “misapprehension” that there must be evidence that defendant was driving impaired before a finding could be made that probable cause existed to arrest defendant for DUI. The State contends that this cause must therefore be remanded so that the trial court can make a determination of the probable cause issue after “having acknowledged the existence of a valid stop.” We conclude that a remand pertaining to this issue is not necessary.

We initially note that the State has cited no authority to support its assertion that evidence that defendant was driving impaired would not be necessary under these circumstances to support a finding of probable cause. The State is incorrect if it is suggesting that evidence of “driving impaired” is unnecessary, as probable cause exists if the police officer has sufficient knowledge to believe that a defendant was “impaired” at the time he was “driving.” The State is correct, however, if it means that evidence that a defendant was observed driving in an impaired manner is not always necessary. See, e.g., People v. Wingren (1988), 167 Ill. App. 3d 313, 322 (it is not necessary for the officer to observe the defendant driving).

The State has also cited no authority to support its argument that the correct procedure would be to remand the cause to the trial court. We further note that, in determining whether the trial court’s ruling regarding a motion to suppress is manifestly erroneous, the important question is the correctness of the ruling and not the correctness of the court’s reasoning in reaching that result. People v. Faletti (1991), 215 Ill. App. 3d 61, 64.

Here, the trial judge clearly stated that he found that Bahe was not a credible witness. It is the trial court’s responsibility to weigh the evidence and determine the credibility of the witnesses (People v. Redd (1990), 135 Ill. 2d 252, 268), and “this court may not substitute its own judgment regarding the credibility of witnesses for that of the trial judge, who actually heard their testimony and observed their demeanor” (People v. Roos (1989), 181 1Ill. App. 3d 682, 685). We therefore will not consider Bahe’s testimony in determining whether the trial court’s ruling was manifestly erroneous. Cf People v. Brodeur (1989), 189 Ill. App. 3d 936, 941 (testimony of officer considered in determining whether the court’s ruling was manifestly erroneous as the court’s determination was not based upon a lack of credibility of the officer); Wingren, 167 Ill. App. 3d at 321 (officer’s testimony considered where the trial court found the testimony truthful and credible).

To determine whether the probable cause requirement has been met, a court must determine whether a reasonable and prudent person who has the knowledge possessed by the officer at the time of the arrest would believe that the defendant committed the offense. (People v. Tisler (1984), 103 Ill. 2d 226, 237; Brodeur, 189 Ill. App. 3d at 940.) Defendant testified that he was speeding approximately five miles per hour above the speed limit in a residential area at 4 a.m. He informed Bahe that he had a couple of beers “earlier.” He was unable to perform successfully the one-leg stand test because of the sharp incline of the driveway and had completed one-half of the walk and turn test when he was arrested. Both defendant and Bergmann testified that defendant did not have any alcoholic beverages after 1:30 a.m. and was not under the influence of alcohol. Based on this testimony, it is not clear that probable cause to arrest defendant for DUI existed. Therefore, we must conclude that the trial court’s ruling which quashed defendant’s arrest for the offense of DUI was not manifestly erroneous.

For the foregoing reasons, we reverse that portion of the trial court’s order which quashed defendant’s arrest for the offense of speeding and remand the cause for further proceedings. We affirm that portion of the trial court’s order which quashed defendant’s arrest for the offense of DUI.

Affirmed in part; reversed in part and remanded.

INGLIS, P.J., and BOWMAN, J., concur.