author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRANDI MABRY, Defendant-Appellant.
    Third District
    No. 3-90-0529
    Opinion filed March 4, 1991.
    Mark D. Fisher, of State’s Appellate Defender’s Office, of Ottawa, for appellant.

      Raymond Kimbell III, State’s Attorney, of Galesburg (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Brandi Mabry, pled guilty to attempt (murder) and armed robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1), 18 — 2). She was subsequently sentenced to consecutive terms of 16 and 8 years’ imprisonment, respectively. Thereafter, she filed a'motion to withdraw her guilty pleas. The trial court denied the motion. The defendant appeals.

The indictments alleged that the defendant intentionally beat the victim and stabbed him with a knife, intending to kill him. They further alleged that the defendant, while armed with dangerous weapons, i.e., a bat and a knife, took property from the victim.

At a change of pleas hearing, the defendant was admonished of her rights pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402). After the prosecutor presented a factual basis for the defendant’s guilty pleas, the trial court accepted her pleas and found her guilty of attempt (murder) and armed robbery. It then sentenced her to consecutive prison terms of 16 and 8 years.

Thereafter, the defendant filed a motion to withdraw her guilty pleas. At the hearing on her motion, defense counsel noted that he had filed the requisite Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) certificate, but had not reviewed the transcript of proceedings, which was unavailable. After hearing counsel’s arguments, the court denied the defendant’s motion.

On appeal, the defendant first argues that the cause should be remanded for a new hearing on her motion to withdraw her guilty pleas because her trial counsel did not review a transcript of the plea proceedings prior to the hearing on her motion to withdraw her pleas.

Supreme Court Rule 604(d) provides in part that an indigent defendant’s attorney must file a certificate stating that the attorney consulted with the defendant to ascertain her contentions of error in the entry of the guilty plea, examined the trial court file and report of proceedings of the guilty plea, and made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. 134 Ill. 2d R. 604(d).

The State concedes that Rule 604(d) was not fully complied with since the report of proceedings from the guilty plea hearing was not prepared until after the hearing on the motion to withdraw the plea. Nevertheless, the State argues that it substantially complied with the rule and therefore a new hearing is not required.

We note that the same argument the State makes here was recently rejected in People v. Johnson (1990), 207 Ill. App. 3d 122, 565 N.E.2d 284. Furthermore, we note that Rule 604(d) must be strictly followed. (People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30; People v. Vickery (1991), 207 Ill. App. 3d 574.) As the Supreme Court noted in Wilk, “[The] rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions. It is incumbent upon counsel and courts alike to follow them.” (Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221.) Accordingly, we vacate the judgment of the circuit court of Knox County denying the defendant’s motion to withdraw her guilty pleas and remand the cause for a new hearing on the motion.

Turning to the defendant’s second issue on appeal, we note that the issue may likely recur following remand and therefore we will address it here. The defendant argues that the court improperly used the same aggravating factor of severe harm to impose a sentence longer than the minimum and then to impose consecutive sentences. In support of her position, she relies on “double enhancement” case law stating that a potential aggravating factor for sentencing purposes, which also constitutes an element of the offense charged, cannot be considered as an aggravating factor in sentencing. People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429; People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467; People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.

In pronouncing consecutive sentences of 16 years’ imprisonment for (attempt) murder and 8 years’ imprisonment for armed robbery, the trial court noted that the defendant had a prior criminal history and that the sentences imposed were necessary to deter others. It further noted that the defendant had caused serious bodily injury to the victim and that her offenses were accompanied by exceptionally brutal behavior indicative of wanton cruelty. In that regard, it noted that to accomplish the robbery, the defendant stabbed the victim and continued using force when the victim was down and was offering no further resistance. The court stated, however, that it would not impose an extended-term sentence, even though the extended-term provisions were applicable. It then held that it would impose consecutive sentences, noting that the criteria set forth in section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) were present.

Under the facts presented, we find no improper enhancement of the defendant’s sentence. The case law cited by the defendant is not analogous to the instant case. The double enhancement cases cited by her involved situations where the same element enhanced both the classification of the offense and the sentence within the applicable range. In the instant case, both offenses were Class X felonies and were not enhanced to that classification by the fact that the defendant inflicted severe harm upon the victim. Moreover, we note that arguments similar to the one the defendant makes here were rejected in People v. Russell (1986), 143 Ill. App. 3d 296, 492 N.E.2d 960, and People v. Biesiada (1990), 201 Ill. App. 3d 39, 558 N.E.2d 520.

For the foregoing reasons, the judgment of the circuit court of Knox County denying the defendant’s motion to withdraw her guilty plea is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

BARRY and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR R. GARRISON, Defendant-Appellant.
    Third District
    No. 3-89-0415
    Opinion filed March 6, 1991.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (John X. Breslin and Elizabeth A. Klug, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a guilty plea to first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), the defendant, Arthur R. Garrison, was sentenced to 75 years in prison. The defendant appeals the length of his sentence. We affirm.

The record shows that the defendant was charged with murder and felony murder. Count I alleged that he stabbed Marilyn Nicoline with a knife, causing her death. Count II alleged that he committed the same act while committing the forcible felony of aggravated criminal sexual assault. The defendant entered a blind plea of guilty to count I.

The record of the sentencing hearing shows that deputy sheriff John Erickson testified regarding the incident. He stated that he was dispatched to the home of the defendant’s mother, Betty Garrison, to investigate a report of a drunken person who stated that he had killed a man. Upon his arrival, he observed the defendant sleeping on the davenport.

After the defendant was awakened, he told Erickson that he had stabbed a man that evening and proceeded to show him a knife handle he had placed in a wastebasket. The defendant then directed him to the residence of Marilyn Nicoline. Upon arriving at Nicoline’s home, Erickson found her nude body lying on the kitchen floor. Erickson concluded his testimony with the observation that in his opinion the defendant was not intoxicated when he interviewed him.

Pathologist Joan Barenfanger testified regarding the victim’s wounds and cause of death. She stated that the victim had suffered a five-inch-deep stab wound to her back. She had various cuts on the index finger and thumb of her left hand. She had received a one-half-inch-long by one-eighth-inch-wide laceration near her left eyebrow, as well as other wounds and bruises to her face and head. Dr. Barenfanger testified that these wounds were caused by something broad and blunt. Furthermore, under the victim’s chin were four bruises which appeared to have been caused by pressure applied by fingers.

The victim had also suffered a wound to her chest, where a knife blade had gone through her sternum. Barenfanger concluded that the fatal injury was a stab wound to the victim’s chest, wherein the blade had passed entirely through her breast plate. The knife blade was still embedded in this wound, and the victim’s skin had formed a “tent” around the part of the blade that protruded out of her chest.

Dr. Barenfanger testified that a strong force was necessary to drive a knife through the breast plate. She further testified that spermatozoa and abrasions had been found in the victim’s vagina. This indicated to her that the sexual activity which occurred was done with a strong impact. Other evidence showed that the seminal material found could have come from the defendant.

Dr. Robert E. Chapman, a physician specializing in forensic psychiatry, testified that he had examined the defendant and found him to be of low intelligence. He diagnosed him as having a learning disability, borderline mental retardation, antisocial personality disorder, and an alcohol and drug abuse problem. Dr. Chapman believed that the defendant was under the influence of alcohol when he committed the murder.

The defendant testified that on the night of the murder he was at a party and left it to go next door to steal money. He knocked on the door even though he thought no one was home. When the victim answered the door, he grabbed her, put his hand over her mouth, and told her he wanted money. She said she would get some. She then went to her kitchen and grabbed a knife from the counter. He stated that he grabbed the victim’s wrist and hit her in the nose. The victim fell, and the knife went into her chest.

The defendant testified that he did not recall causing the other stab wounds. He denied sexually assaulting the victim and insisted that he did not intend to hurt or kill her. He knew what he did was wrong and that he would have to suffer a penalty.

Several witnesses testified on the defendant's behalf and stated that he was courteous, pleasant, and nonviolent. His mother testified that the defendant’s father was an alcoholic who verbally abused the defendant. In addition, his father had attempted suicide three times, once in the defendant’s presence.

Other evidence showed that the defendant was 20 years old and had previously been adjudicated delinquent for burglary and residential burglary. In addition, he had numerous arrests and convictions for illegal possession, transportation, and consumption of alcohol.

Following the 21/2-day sentencing hearing, the trial court found that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. It therefore found the defendant eligible for an extended-term sentence and sentenced him to 75 years in prison.

On appeal, the defendant does not contest this finding. Instead he argues that the trial court erred in failing to consider several mitigating factors. Specifically, he argues that the court failed to take into consideration his psychological condition, his alcohol problem, his lack of a significant criminal record, and his cooperation with the authorities.

Sentencing is a matter of judicial discretion and, absent an abuse of that.discretion, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The statutory requirement that the trial judge set forth on the record his reasons for a particular sentence does not obligate the judge to recite each factor and set a value on it. (People v. Taylor (1987), 164 Ill. App. 3d 938, 518 N.E.2d 409.) Where mitigating evidence is before the court, it is presumed that the judge considered the evidence, absent some indication other than the sentence itself to the contrary. People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.

We find that the trial court did not abuse its discretion in sentencing the defendant to 75 years of imprisonment. The evidence supports the court’s finding that the crime was accompanied by exceptionally cruel behavior indicative of wanton cruelty. In addition, the record shows that the defendant had a significant criminal record. Furthermore, there is nothing in the record indicating that the court failed to consider any mitigating evidence properly before it.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS JORDAN, Defendant-Appellant.
    Third District
    No. 3-90-0503
    Opinion filed March 8, 1991.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Louis Jordan, appeals his five-year sentence for forgery (Ill. Rev. Stat. 1989, ch. 38, par. 17 — 3(a)(2)).

The record shows that the defendant was initially charged with one count each of forgery and theft. In return for the defendant’s guilty plea to the forgery count, the State agreed to dismiss the theft count and to a five-year limit on the forgery sentence.

According to the factual basis for the plea, the defendant worked with Floyd Kaiser at a Rock Island mission in the summer of 1989. Without Kaiser’s permission or knowledge, the defendant obtained an American Express card in Kaiser’s name. On October 14, 1989, he used the card without Kaiser’s permission to rent a car from a Moline rental agency, signing Kaiser’s name on the charge slip. After the defendant was arrested in Nevada and returned to Illinois, he confessed to the crime.

At the sentencing hearing, 65-year-old Floyd Kaiser testified that the defendant obtained a credit card in his name and made numerous charges with it. Kaiser contacted American Express and told them he had not made the purchases. Someone also apparently obtained a telephone calling card in his name and used it to make approximately $300 in calls. As a result, Kaiser had difficulty obtaining telephone service when he moved into a high-rise for the elderly.

Following the close of testimony, the trial court found that one aggravating factor was that the crime had been committed against a person 60 years of age or older. The court then imposed a five-year term of imprisonment.

The defendant later wrote a letter to the trial court complaining about his attorney, Vincent Lopez, Jr. In the letter, he made the following allegations: Lopez had failed to call Eleanor Morales, who would have testified that all of the fraudulent purchases were made to ease her family’s poverty; Lopez did not show the defendant the presentence report prior to sentencing; and that when the defendant called Lopez’s office, he was told that Lopez was in trial, but that he could speak with Lopez before the sentencing hearing.

The trial court did not grant the defendant a new attorney. Lopez subsequently filed a motion to reconsider the defendant’s sentence. Following a hearing, the court denied the motion.

On appeal, the defendant first argues that the trial court erred in considering as an aggravating factor that the crime was committed against a person 60 years of age or older, because the only victim of the crime was American Express.

The Unified Code of Corrections authorizes the trial court to consider as an aggravating factor that the victim was 60 years of age or older. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(8).) At the sentencing hearing, Kaiser testified that the defendant had made numerous charges on an American Express card obtained in Kaiser’s name. As a result, Kaiser had to notify American Express that he had not made the purchases. The crime may also have contributed to his problems in obtaining telephone service. Based on the defendant’s appropriation of Kaiser’s identity and the resulting difficulties it caused him, we find that the trial court could properly consider Kaiser to be a victim of the offense.

The defendant next argues that Lopez should have filed a Rule 604(d) (134 Ill. 2d R. 604(d)) certificate along with his motion to reconsider the sentence. He notes that Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) states that when defense counsel files a motion to withdraw a guilty plea, he must also file a certificate stating that he has examined the record and consulted with the defendant to determine his contentions of error. Although the rule does not refer to a motion to reconsider the sentence, the defendant contends that such a motion is so similar to a motion to withdraw a guilty plea that it should be accompanied by a Rule 604(d) certificate.

We disagree. A motion to reconsider a sentence is fundamentally different from a motion to withdraw a guilty plea. The former seeks review of the sentence imposed,. while the latter raises issues relating to the validity of the guilty plea. (See People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.) Since the motions are different and Rule 604 imposes no certificate requirement on a motion to reconsider the sentence, we find that counsel did not err in failing to file a certificate.

The defendant lastly argues that the trial court should have appointed new counsel for him following his sentencing hearing. He bases his argument on his letter to the trial court, in which he alleged that his counsel failed to call Eleanor Morales, failed to show him the presentence report, and failed to return his phone calls.

A defendant’s allegation of ineffective assistance does not automatically require the appointment of new counsel. (People v. Taylor (1986), 146 Ill. App. 3d 45, 496 N.E.2d 263.) Instead, the court should consider the factual matters raised by the defendant to determine whether counsel neglected the case. (People v. Horton (1990), 193 Ill. App. 3d 695, 549 N.E.2d 1370.) If there is a reasonable probability that defense counsel’s neglect affected the outcome, then the trial court should make further inquiry into the matter. Horton, 193 Ill. App. 3d at 706, 549 N.E.2d at 1378.

The record fails to support the defendant’s allegations that his counsel neglected his case. The defendant alleged that Eleanor Morales would have testified that the purchases were made solely to ease her family’s poverty. However, according to a list appended to the presentence report, some of the purchases were made in the following businesses: Holiday Inn, Musicland, Co-op Tapes and Records, Tape World, Tobacco Bowl, Avis Rent-A-Car, and the fragrance department of J.C. Penney. Since those purchases cast doubt on the defendant’s claim, defense counsel could have reasonably concluded as a matter of trial strategy that Morales’ testimony would not have helped the case.

Although the defendant also alleged that he did not see the presentence report prior to sentencing, he mentions no errors or omissions in it. Consequently, he has not established any prejudice from his failure to review the report.

Lastly, the defendant alleged that when he called Lopez’s office, he was told that Lopez was unavailable but that he could speak with him before the sentencing hearing. The defendant does not contend that he did not eventually speak with Lopez, nor does he show how the lack of telephone consultations prejudiced his case. Accordingly, we find that the court did not err in declining to appoint new counsel for the defendant.

The judgment of the circuit court of Rock Island. County is affirmed.

Affirmed.

BARRY and GORMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUCETTE TOWNSEND, Defendant-Appellant.
    Third District
    No. 3-90-0121
    Opinion filed March 6, 1991.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay P. Hoffmann, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

On December 20, 1989, the trial court found the defendant, Lucette Townsend, guilty of unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)). Based on this possession conviction, the State filed a petition to revoke the defendant’s probation in an unrelated retail theft conviction. On January 17, 1990, the police incarcerated the defendant based on the pending petition to revoke her probation. On February 2, 1990, the trial court sentenced her to 20 months’ imprisonment for the possession conviction, giving her credit for four days she had spent in pretrial custody. The court refused to give her credit for the 17 days she had spent in custody on the petition to revoke probation. The State subsequently dismissed the petition to revoke probation. The defendant appeals, arguing that the trial court erred in denying her credit for the time she spent in custody on the petition to revoke.

Section 5 — 8—7 of the Unified Code of Corrections provides in relevant part:

“(b) The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3 — 6—3 of this Code.
(c) An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given credit on the determinate sentence or maximum term and the minimum term of imprisonment for time spent in custody under the former charge not credited against another sentence.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—7(b),(c).

Neither the defendant nor the State cites any cases on point with the instant facts. The defendant contends that the basis for the petition to revoke was the possession conviction and she should therefore receive credit on her possession sentence for the time she spent in jail on the petition.

The State contends that the defendant was in jail due to the theft conviction. It argues that jail time served pursuant to a petition to revoke probation based on the commission of a later crime should be credited toward the sentence for the earlier crime, not that which is used as a basis for revocation, relying on People v. Leggans (1986), 140 Ill. App. 3d 268, 488 N.E.2d 614, and People v. Clem (1979), 72 Ill. App. 3d 163, 390 N.E.2d 615.

We note that the object of section 5 — 8—7(b) is to account for all time served in confinement for a particular offense. (People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872.) Further, the general legislative intent is to prevent the State from depriving a defendant of credit for jail time through technical evasion. People v. Kane (1985), 136 Ill. App. 3d 1030, 484 N.E.2d 296.

Based on the particular facts of this case and the legislative intent of section 5 — 8—7, we find that the defendant is entitled to credit for the time she spent in custody on the petition to revoke probation. The State is splitting hairs in arguing that the defendant was in jail for the theft conviction but not for the possession conviction. She was in jail because of both convictions. If anything, the possession conviction was the stronger factor. Had it not been for that conviction, she would have remained free on probation and bail pending sentencing.

Further, denying the defendant credit would defeat the general intent of section 5 — 8—7(c). The legislature added that section to prevent the State from dropping an initial charge and recharging a defendant with another crime, with the intent of denying credit for time spent in jail on the first charge. (People v. Kane (1985), 136 Ill. App. 3d 1030, 484 N.E.2d 296.) In this case, the State is essentially trying to obtain the same impermissible result after trial rather than before. The State filed the petition to revoke, apparently intending to pursue it only if it was dissatisfied with the sentence on the possession conviction. When it found the sentence to its liking, it dismissed the petition. If the State were to get its way, the defendant would receive no credit for the time she served while the State waited to see whether her sentence was, in its view, sufficient.

Accordingly we conclude that the defendant is entitled to 17 days’ additional credit on her unlawful possession conviction. Pursuant to our authority under Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)), we hereby order that 17 days be credited to the defendant’s sentence.

The judgment of the circuit court of Peoria County is affirmed as modified.

Affirmed.as modified.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. TODD S. REUSCH, Defendant-Appellant.
    Third District
    No. 3-90-0457
    Opinion filed March 6, 1991.
    David E. Zwicker, of Aledo, for appellant.
    Michael J. Herr, State’s Attorney, of Aledo (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Todd S. Reusch, filed a petition to rescind the statutory summary suspension of his driver’s license, alleging that the arresting officer had not had reasonable grounds to stop his vehicle. He also filed a motion to quash arrest and suppress evidence. Following a combined hearing, the trial court denied the petition to rescind and the motion. The defendant appeals. We reverse.

The defendant and the State agreed to the following statement of facts. At the hearing, the defendant testified that in the early morning hours of April 8, 1990, he and a friend were driving along a rural road. His friend was asleep at the time. The defendant explained that he pulled off the road to urinate. He then got back in his car and had driven another 20 to 50 yards when he saw the red and blue Mars lights of a police car behind him. After the defendant stopped, the officer approached his car. The defendant rolled down his window and handed the officer his license. The officer told the defendant that he had seen his car stopped and thought he was having car trouble. The defendant informed the officer that he was not having any car trouble as evidenced by the fact that he had driven away after stopping.

The officer subsequently informed the defendant that he had seen a “wet spot” and thought he should investigate. The defendant noted, however, that it was dark at the time and there were no streetlights or other lighting in the vicinity. The defendant further stated that there were no signs prohibiting stopping on the roadway nor was there any oncoming traffic when he initially stopped. Moreover, he testified that he was not speeding or driving erratically when he saw the flashing lights of the police car. He noted that he was licensed to drive and the car was properly registered.

The police officer issued the defendant a citation for driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 95V2, par. 11— 501(a)(2)). In the officer’s sworn report, he stated that he had to turn the vehicle’s motor off and shake the defendant to get his identification. The officer further noted that he detected a strong odor of alcohol.

The defendant’s friend testified that he was sleeping in the front passenger seat when he was awakened by a police officer shaking his left arm. The friend stated that the officer then turned the car off.

At the close of the defendant’s evidence, the State moved for a directed finding. The defendant responded that he had met his burden of establishing a prima facie case for rescission and that the burden had therefore shifted to the State. The trial court agreed and denied the State’s motion. The court found, however, that the officer had had “probable cause” to stop the defendant because he believed the defendant was having car trouble.

The defendant’s attorney then began arguing that the statutory summary suspension should be rescinded because the officer had not had reasonable grounds to make the initial stop. The trial court subsequently reversed its earlier ruling and granted the State’s motion for a directed verdict. In so doing, it denied the defendant’s motions to quash the arrest and suppress evidence, finding that the officer had had probable cause to make the stop.

The defendant argues on appeal that the trial court erred in finding that the officer had probable cause to make the traffic stop and, accordingly, that the court erred in failing to grant his motion and petition.

The correct standard to be applied in ascertaining whether an investigatory stop is justified is not the constitutional requirement of probable cause to arrest or search but the less exacting test of whether the officer had a reasonable, articulable suspicion of criminal activity to warrant the stop. (People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.) To make an investigatory stop of an automobile, a police officer must have an articulable suspicion that the motorist is unlicensed, that the automobile is not registered or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. People v. Decker (1989), 181 Ill. App. 3d 427, 430, 537 N.E.2d 386, 387.

In the instant case, the defendant testified that he pulled off to the side of the road to urinate. He then got back in his car and drove another 20 to 50 yards. He stated that he was not speeding or driving erratically. His driver’s license was valid and the car was properly registered. He was nonetheless stopped by the police officer because the officer believed he was having car trouble.

Based on these facts, the trial court found that the officer had probable cause to make the traffic stop. We find that this holding is against the manifest weight of the evidence and we reverse. There was no articulable suspicion that the defendant was unlicensed, that the vehicle was not registered or that the vehicle or an occupant therein was subject to seizure for violation of the law.

Accordingly, the decision of the circuit court of Mercer County as to the defendant’s motion to quash arrest and suppress evidence is reversed. As the underlying arrest is dismissed, we find that the defendant’s petition also should have been granted.

Reversed.

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


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE COWAN, Defendant-Appellant.
    Third District
    No. 3-90-0264
    Opinion filed March 8, 1991.
    BARRY, J., dissenting.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Maurice Cowan, was charged by information with criminal sexual, assault and battery (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(1), 12 — 3(a)(2)). The trial court dismissed the criminal sexual assault count at the close of the State’s case. The jury thereafter convicted him of battery, and the court sentenced him to serve six months in the county jail. The defendant appeals, contending that he was not proved guilty beyond a reasonable doubt.

The complainant, Michelle McClendon, testified that she was in Rock Island on October 20, 1989, to visit her ex-boyfriend. While she stayed at Dottle Morrison’s house that night, she was visited by the defendant. He asked her to come outside, eventually explaining that she was to accompany him to meet Adrian Morrison. McClendon described Morrison as a good friend. The defendant brought McClendon to Roland Cherry’s apartment. At the apartment, McClendon, Cherry, Morrison, the defendant, Cherry’s mother, and LeRoy Richardson participated in a party. At first, McClendon sipped from a glass of wine while the rest of the group drank from a gallon bottle of Wild Irish Rose. Later, however, some cocaine was brought to the party, and Cherry asked McClendon if she wished to share some with him. Thereafter, McClendon free-based half a gram of cocaine with Cherry and the defendant.

McClendon further testified that when it was nearly daytime, Cherry began making advances toward her, telling her she owed him for the cocaine and he expected her to have sex with both him and the defendant. Adrian was passed out at the time, so McClendon turned to Cherry’s mother for help, but she was intoxicated and paid no attention to her. Cherry then grabbed McClendon and pulled her into the bedroom. According to McClendon, both Cherry and the defendant pushed her onto the bed. Cherry then removed her shoes and hid them. McClendon pleaded to use the bathroom, which the defendant convinced Cherry to permit. She testified that she intended to escape, but could not fit through the small bathroom window. She therefore came out of the bathroom. Cherry and the defendant then forced her into the bedroom and onto the bed. The defendant held McClendon’s legs, while Cherry pulled her pants down and inserted his finger into her vagina. According to McClendon, both men touched her breasts, but the defendant never touched her vagina.

McClendon eventually convinced the two men to let her go by promising to obtain some money to pay them the amount they said she owed for the cocaine. Cherry, his mother, Richardson, and Mc-Clendon then drove to a tavern where McClendon had said she could obtain some money. Although the bar was closed, one of the owners let her inside to take refuge. The owner then called the police. Just before police officer Todd Engstrom arrived, Cherry returned to his car and quickly drove away. Officer Engstrom eventually caught up with Cherry and brought him to the police station.

On cross-examination, McClendon was asked about statements she made to the police on the day in question. She explained that she talked to Officer Engstrom two different times on October 21. She stated that it was possible she had not disclosed to the officer when she first spoke to him at the bar that Cherry and the defendant had tried to force sex upon her. She remembered, however, that she told this to the officer when she spoke to him at the police station.

On further cross-examination, McClendon denied that she had reported to Engstrom that the sexual assault occurred in the kitchen of Cherry’s apartment. She stated that she was not assaulted in the kitchen area while her hands were held behind her back and that she did not recall telling the police such a story. She further denied having told Officer Engstrom that she initially permitted Cherry and the defendant to fondle her breasts and vaginal area through her clothes. McClendon stated that she told Officer Engstrom that Cherry inserted his finger into her vagina, but the defendant did not. She denied telling the police that the two men had demanded $30 from her for her share of the food and cigarettes. McClendon also testified that it was the defendant who grabbed her throat and hit her on the side of her face prior to the sexual assault.

When cross-examined concerning statements she made to the police in February of 1990, McClendon acknowledged that she had stated that her friend Morrison hit her during a fight that occurred during the course of the party. On redirect examination, McClendon indicated that she incurred the scratches and bruises on and around her neck as she struggled with the defendant and Cherry.

Rock Island police officer Todd Engstrom testified that when he arrived at the tavern, McClendon told him Cherry and the defendant had been harassing her. She made no mention of a sexual assault, but Engstrom only spoke with McClendon for a few seconds before he left to apprehend Cherry.

On cross-examination, Engstrom testified that he interviewed Mc-Clendon at the police station later that day. According to Engstrom, McClendon told him she had met Cherry and the defendant outside a bar on the previous night. From there, she had gone to Cherry’s apartment, where everyone but her became drunk. McClendon had further told Engstrom that she was sexually attacked in the kitchen area of the apartment. She said that she initially permitted Cherry and the defendant to fondle her breasts and vagina through her clothes, but later decided not to participate any further. She also noted that when she was attacked, she was standing. According to Engstrom, McClendon told him that both Cherry and the defendant placed their fingers in her vagina.

Engstrom further testified that McClendon claimed she was told she owed $30 for the food and cigarettes she had consumed at the party. She did not mention anyone using cocaine. McClendon also told Engstrom that Cherry had inflicted the marks on her neck when she tried to escape after the assault. Engstrom testified that McClendon easily distinguished the two men and did not appear to confuse one for the other when she gave her statement.

On appeal, the defendant contends that he was not proved guilty of battery beyond a reasonable doubt. He points out that the complainant’s trial testimony was inconsistent in many key aspects with the initial version she gave the police.

It is well settled that, on review of a conviction, this court must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) A criminal conviction will not be set aside unless the evidence is so unsatisfactory that it creates a reasonable doubt of guilt. People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that the defendant’s conviction must be reversed. The record reveals numerous inconsistencies between Mc-Clendon’s trial testimony and the statements she made to the police. For example, McClendon told Officer Engstrom that the assault occurred in the kitchen of the apartment while she was standing. Furthermore, she stated that as the two men alternately restrained her, they both inserted their fingers into her vagina. These statements were in sharp contrast to her trial testimony that the assault occurred on a bed in the bedroom, while the defendant held her down and Cherry alone placed his finger in her vagina.

Moreover, we note that the information charged that the defendant committed a battery by fondling McClendon’s breasts, buttocks, and thighs without her consent. However, Officer Engstrom testified that McClendon told him she permitted the defendant to fondle her breasts and vagina through her clothes.

The State contends that the contradictions brought out at trial were minor and collateral. We find, however, that the inconsistencies and contradictions involved here can hardly be deemed collateral or minor. Where even the room in which the alleged assault took place changed between the police interview and the trial, we find that the very existence of the incident was called into question. Under the circumstances, we conclude that the State’s evidence left a reasonable doubt about the defendant’s guilt.

The judgment of the circuit court of Rock Island County is reversed.

Reversed.

GORMAN, J., concurs.

JUSTICE BARRY,

dissenting:

I dissent from the majority ruling that defendant was not proven guilty beyond a reasonable doubt, and most particularly, with the apparent conclusion that no rational trier of fact could have found defendant guilty. I would not characterize either the jury or the trial judge as irrational in this case.

In support of the verdict, it must be noted that the victim was very definite in her statements that defendant fondled her breasts and that he restrained her during a sexual assault by Cherry. The factual discrepancies that were present between the account she gave on the witness stand and the statement she had made to police the day of the attack were not surprising, given the emotional impact of the battery. In my view, it would have been more unusual had she related exactly the same facts on both occasions.

There were scratches on the complainant’s neck which generally corroborated her story of the attack made upon her at the party. Discrepancies as to whether her attackers first touched her while in the kitchen or in the bedroom and whether a vaginal entry occurred once or twice do not render her testimony so improbable or unsatisfactory as to preclude a verdict of guilty.

Minor inconsistencies in a complainant’s testimony have been held not to be grounds for reversal but father to affect the credibility of the witness. (People v. Du Pree (1987), 161 Ill. App. 3d 951, 514 N.E.2d 583.) Credibility is, of course, a matter for the jury, which is in a better position than the reviewing court to assess the ability of the witness to remember and to weigh any discrepancy in the light of all the evidence. People v. Seiber (1979), 76 Ill. App. 3d 9, 394 N.E.2d 1044.

Here the complainant related at trial that she had participated in the use of cocaine at the party. This fact alone explains some of the discrepancies between.her statement to the police and her testimony at trial. Furthermore, Officer Engstrom described the complainant as upset and excitable when he talked to her, an emotional condition that is to be expected under the circumstances.

The applicable rule is that announced in People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182, 188:

“It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses.”

In light of the great deference which we as a reviewing court are required to give jury verdicts, variances in the testimony of a victim do not warrant a reversal unless the evidence is so unreasonable, improbable or unsatisfactory that there exists a reasonable doubt as to guilt. People v. Davis (1981), 95 Ill. App. 3d 161, 419 N.E.2d 682.

Accordingly, I would affirm the judgment of conviction entered in the circuit court.


author: PRESIDING JUSTICE STOUDER

text:
    ROBERT H. TREADWELL, Plaintiff-Appellee, v. JESSE DOWNEY, Defendant-Appellant.
    Third District
    No. 3-90-0321
    Opinion filed March 8, 1991.

      Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy (Jonathon H. Barnard, of counsel), for appellant.
    Lewis, Blickhan, Longlett & Timmerwilke, of Quincy (George J. Lewis, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Jesse Downey, appeals from a judgment and award of damages in the net amount of $90,964.14 to the plaintiff, Robert Treadwell, following a jury trial in the circuit court of Hancock County. We affirm.

In his complaint, the plaintiff alleged he was injured when a tractor owned by the defendant and operated by the plaintiff went over a ledge adjacent to a driveway and into a ravine. The plaintiff claimed the brakes on the tractor were defective and that the defendant was negligent in failing to warn the plaintiff of this condition or to adjust the brakes. Following the jury verdict, the defendant filed a post-trial motion contending the verdict was against the manifest weight of the evidence and that he was denied a fair trial due to certain improper comments made by plaintiff’s counsel in closing argument. He appeals the denial of the post-trial motion.

We first address the sufficiency of the evidence presented. A motion for a judgment notwithstanding the verdict should be granted only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) When considering the sufficiency of the evidence, this court must view the evidence in the light most favorable to the appellee. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.

At trial, it was elicited that the defendant was the plaintiff’s landlord. The plaintiff rented a residence on the defendant’s property. A few days before the incident, the defendant asked the plaintiff to maintain the lane extending from the main road while the defendant was on vacation. The plaintiff agreed to do so and was shown the tractor. The plaintiff testified that he was familiar with tractors due to previous employment experience.

The plaintiff further testified that on December 20, 1985, he woke up, noticed it had snowed during the night, and decided to plow the lane. After warming up the tractor, the plaintiff dropped the blade behind the tractor and drove down hill along the lane to the main road. There, he put the tractor in reverse and backed across the main drive, pushing snow as he backed up to an area where he intended to turn around, which was adjacent to the edge of a ravine. While operating the tractor in reverse toward the edge of the ravine, the plaintiff claimed he engaged the clutch and the brake at the same time but noticed that the wheels “kept right on rolling and rolling.” The tractor then went over the edge of the ravine, throwing the plaintiff from the tractor and resulting in injuries.

The defendant testified that when he returned from vacation the plaintiff apologized for tearing up the tractor and commented on what happened. The plaintiff stated, “I was doing just fine. I got down there close to the edge and my foot slipped off the clutch and away I went over the edge.” The defendant further testified that he made certain adjustments to the tractor brakes about three weeks before the incident. He adjusted a bolt or nut in the brake housing adjacent to each of the rear wheels in order to shorten the distance the brake pedal would have to travel.

Dr. Marvin Van Etten, a professor at Illinois Valley College, testified for the defendant. In his opinion, the tractor brakes were in good operating condition when he inspected them in April 1986. He further noticed that an adjustment had been made to the brakes. The purpose of the adjustment was to shorten the distance that the brake pedal would travel before engagement of the brake shoes and drum, in order to compensate for the loss of thickness in the brake shoes over the life of the brake shoes. According to Van Etten, the reduction in the thickness of the brake shoes would not affect braking ability, but would simply increase the distance the brake pedal would travel before engagement. In his opinion, the adjustment had been made between a year and six months prior to his inspection.

Earl Peters, a farmer and mechanic, testified on behalf of the plaintiff. Peters testified that in his opinion the adjustment to the brakes was made after December 20, 1985, and before March 1, 1986. He further noted that the brakes would not have been adequate before the adjustment.

Further evidence showed that a man named Larry Hunt obtained a statement from the plaintiff in which the plaintiff said that when he tried to stop the tractor it slid off the ice and into the ravine. The plaintiff admitted signing the statement but denied that he read it, claiming he was dyslexic. The plaintiff’s assertion that he was unable to read went unrefuted.

It is well settled that a jury verdict should not be set aside merely because the jury could have drawn different inferences and conclusions from conflicting testimony. (Turner v. Chicago Housing Authority (1984), 122 Ill. App. 3d 419, 461 N.E.2d 551.) The defendant presented the testimony of a witness who allegedly heard the plaintiff say that his boot was wet and slipped off, causing the accident. The plaintiff, meanwhile, presented four "witnesses who testified that they did not hear anyone ask the plaintiff how the accident happened. The testimony of the defense witness may have impeached the plaintiff’s testimony to some degree. However, it is not this court’s duty to reexamine the record to determine whether the jury appropriately weighed the significance or insignificance of this impeachment in their deliberations. Insofar as the statement taken by Larry Hunt is concerned, because the plaintiff cannot read, the jury could have made the inference that the defendant was overreaching in attempting to use the document against the plaintiff.

In addition, there was conflicting testimony from the two expert witnesses regarding when the adjustment to the brakes had been made. The record shows that the defendant’s expert examined the tractor after it had been refurbished for the purpose of being sold, and that as far as he was concerned, the tractor was in about the same condition as it was on the date of the incident. Defendant’s expert appeared to be unfamiliar with the fact that the tractor was refurbished following the incident involved herein. He further stated that he was unfamiliar with the workings of this particular tractor, the Allis-Chalmers WD 45. The defendant’s expert also stated that when he examined the tractor he started it, drove it up a hill, and that it was all right. In his deposition, however, he said that the tractor’s battery was dead and that he couldn’t start it when he examined it. This expert’s testimony, all things considered, is of diminished value. However, the weight to be assigned to an expert opinion is for the jury to determine in light of his credentials and the factual basis for his opinion. (Johnson v. Amerco, Inc. (1980), 87 Ill. App. 3d 827, 409 N.E.2d 299.) The jury in the instant case when confronted with such inconsistent expert testimony and apparently inconsistent statements found in favor of the plaintiff. We will not invade the province of the jury by reversing their decision.

We next address whether the defendant was deprived of a fair trial due to improper remarks made by plaintiff’s counsel during closing argument. During closing argument, plaintiff’s counsel made three improper comments to the jury. The first statement occurred when he was attempting to discuss the operation of the tractor by the plaintiff. Counsel stated, “He backs up toward the ravine, and I want to ask each one of you at this point who would you want to have adjusted the brakes before you approach ***[?]” Defense counsel’s prompt objection was sustained. Later, plaintiff’s counsel made numerous remarks about the identity and unavailability of Larry Hunt. Plaintiff’s counsel commented, “Why hadn’t the mysterious Larry Hunt told him something more[?] The mysterious Larry who we haven’t seen here ***.” The defense counsel’s objection was again sustained. Finally, in characterizing the plaintiff’s testimony, plaintiff’s counsel stated, “He said he didn’t tell the person that took that statement in that other person’s handwriting, he didn’t tell him that, and I believe Mr. Treadwell ***.” Defense counsel’s objection was again sustained.

The defendant contends that each statement individually or all of the statements cumulatively constitute reversible error and are grounds for a new trial. Without question, the comments made by plaintiff’s counsel are all objectionable, inappropriate, and could constitute reversible error in some cases. We do not condone plaintiff counsel’s statements because they violate elementary rules of trial practice. Furthermore, we are concerned about such conduct because it appears from the record that plaintiff’s counsel understood the inappropriateness of his statements and yet made them. However, it has been repeatedly held that, generally, an allegedly improper remark of counsel in closing argument is not prejudicial and will not be reversible error where, as here, the trial court has sustained the objection of the opposing party. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App. 3d 241, 406 N.E.2d 611.) In addition, the trial court in denying the defendant’s post-trial motion found that the statements did not unduly prejudice the defendant’s case. Under the circumstances of this case, therefore, the remarks do not warrant a reversal.

For these reasons, we affirm the judgment of the circuit court of Hancock County.

Affirmed.

BARRY and McCUSKEY, JJ., concur.


text:
    ROBERT HOWELLS et al., Plaintiffs-Appellants, v. JOHN R. HOFFMAN, Defendant-Appellee.
    Third District
    No. 3-90-0352
    Opinion filed March 6, 1991.

      Julian E. Canned, of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria (Talmadge G. Brenner, of counsel), for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria, and Barry J. Handel and Jane W. Arnone, both of Baer, Marks & Upham, of New York, New York (Terri L. Combs, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

This appeal arises from the dismissal with prejudice of plaintiffs’ action against defendant for common law fraud, violations of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 1211/2, par. 137.1 et seg.) and violations of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.). The trial court held, by order dated May 1, 1990, that plaintiffs’ only remedy was to arbitrate pursuant to their contract with Merrill, Lynch, Pierce, Fenner and Smith, Inc. (Merrill Lynch).

Plaintiffs maintained a security account with the brokerage house of Merrill Lynch for which defendant acted as account executive. The account held by plaintiffs was nondiscretionary in nature, and the initial investment approved by plaintiffs was the purchase of municipal bonds with a fixed rate of income. Defendant, subsequently and without prior approval of the plaintiffs, sold the bonds and reinvested the proceeds in investments known as “EIF Merritt International Series 1987” and “CRI Insured Mortgage Investment III, Limited Partnership.” These investments then drastically decreased in value, leaving plaintiffs with only a fraction of their original investment.

Prior to making their initial investment, plaintiffs executed an agreement with Merrill Lynch which contained a provision requiring arbitration of controversies. The arbitration provision, in part, states:

“The undersigned agrees, and by carrying an account for the undersigned you agree, that except as inconsistent with the foregoing sentence, all controversies which may arise between us, including but not limited to, any transaction or the construction, performance or breach of this or any other agreement between us, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration and shall be governed by the laws of the State of New York.”

It is undisputed that defendant was employed by Merrill Lynch at their Peoria, Illinois, office as an account executive and that his agency was disclosed to and known by plaintiffs at the time they entered into the agreement.

The issue on appeal is whether the trial court erred in determining that plaintiffs were bound to arbitrate their claim against defendant pursuant to their agreement with Merrill Lynch. We affirm.

It is well established that where an arbitration agreement is contained within a contract evidencing a transaction involving commerce, the Federal Arbitration Act (FAA) (9 U.S.C. §2 (1982)) governs to the exclusion of State law. (See Geldermann, Inc. v. Stathis (1988), 177 Ill. App. 3d 414, 532 N.E.2d 366.) There is no dispute that the transactions herein involved interstate and not intrastate commerce.

Plaintiffs first assert that the FAA does not cover State common law fraud actions. The cases cited by plaintiffs for their proposition, however, do not support their position. These cases address State law fraudulent inducement causes of actions wherein the conduct creating the cause of action arose prior to an agreement being signed mandating arbitration. (See N.C. Antel & Brothers v. Sexton (1891), 137 Ill. 410; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) In this case, the alleged wrongful conduct occurred after execution of the agreement. The arbitration agreement herein provides that “all controversies” arising between the parties “shall” be submitted to arbitration. Federal courts construing such broad arbitration provisions have declined to exclude fraud and other tort claims arising after execution of the agreement from FAA coverage. (See Pierson v. Dean, Witter, Reynolds, Inc. (7th Cir. 1984), 742 F.2d 334; In re Oil Spill by “Amoco Cadiz” Off the Coast of France March 16, 1978 (7th Cir. 1981), 659 F.2d 789.) This is simply not a fraudulent inducement case and, therefore, plaintiffs’ argument that State law applies to separate tort fraud claims is without merit.

The next question is whether defendant is protected by the arbitration agreement under the third-party beneficiary theory. Defendant clearly did not sign the agreement which he asserts requires arbitration in this case. Plaintiffs argue that the agreement does not in any manner identify defendant as a beneficiary of the agreement. Plaintiffs correctly point out that Federal law requires, under ordinary contract principles, that the intended class of beneficiaries of the contract be named within the contract in order to be afforded protection. (See F.W. Hempel & Co. v. Metal World, Inc. (7th Cir. 1983), 721 F.2d 610.) In Hempel, however, the court of appeals stated that “[t]he express language of the contract and the surrounding circumstances at the time the contract was executed determine whether or not the contracting parties intended to benefit a third party directly.” (Hempel, 721 F.2d at 613.) It is also well-established Federal law that doubts regarding the scope of arbitrable issues ought to be resolved in favor of arbitration. See Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983), 460 U.S. 1, 74 L. Ed. 2d 765, 103 S. Ct. 927.

Plaintiffs primarily rely on Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, Inc. (1st Cir. 1986), 795 F.2d 1111, and Kyung Sup Ahn v. Rooney, Pace Inc. (S.D.N.Y. 1985), 624 F. Supp. 368, for their proposition that defendant is not a third-party beneficiary of their agreement with Merrill Lynch. In Mowbray, plaintiffs signed a contract with a clearing house broker who was not a party to the lawsuit. The arbitration provision of the contract made no mention of the named defendants nor did the defendants sign the agreement. Defendants were introducing brokers responsible solely for certain supervising functions over plaintiffs’ account. Noting the agreement very explicitly excluded defendants from certain provisions, the court held that since it was not obvious that plaintiffs had intended defendants to be beneficiaries of plaintiffs’ arbitration agreement with the clearing house broker, defendants were not third-party beneficiaries of the contract. (Mowbray, 795 F.2d 1111.) Similarly, in Kyung Sup Ahn, an introducing broker was not allowed to compel arbitration between the customer and the clearing broker. The court determined that the introducing broker was “entirely independent” from the clearing broker and was nothing more than an incidental beneficiary of the agreement. Defendants, therefore, lacked standing to enforce the arbitration clause of the agreement. (Kyung Sup Ahn, 624 F. Supp. 368.) Mowbray and Kyung Sup Ahn are distinguishable. Here, defendant was an employee of Merrill Lynch, the clearing broker; he was not merely an introducing broker as were the defendants in Mowbray and Kyung Sup Ahn. Defendant cites Nesslage v. York Securities, Inc. (8th Cir. 1987), 823 F.2d 231, and Letizia v. Prudential Bache Securities, Inc. (9th Cir. 1986), 802 F.2d 1185, which supports this significantly distinction.

In Nesslage plaintiffs signed a margin agreement with a clearing broker for which defendants York Securities, Inc. (York Securities), was the registered agent and Samson was its employee in charge of plaintiff’s account. The agreement contained a provision requiring mandatory arbitration of any controversy related to plaintiffs’ account. Plaintiffs became disappointed in the way the account was being handled and filed a complaint in the United States District Court alleging, among other things, State securities law and common law fraud violations. Plaintiffs argued on appeal that the district court erred in holding that York Securities and Samson could enforce the arbitration agreement on the grounds that they were not parties to the margin agreement. The court determined that York Securities and Samson were third-party beneficiaries to the agreement under the rationale that York Securities was the disclosed agent of the clearing broker and Samson was York’s employee in charge of plaintiffs’ account. (Nesslage, 823 F.2d 231.) In Letizia, plaintiff claimed that defendant Bache’s account executive, Kwee, and Kwee’s supervisor, Selbst, churned his account without regard to his investment objectives. The Federal district court held that plaintiff’s claims, partly based on common law fraud, were subject to the arbitration clause of the agreement executed between plaintiff and Bache. On appeal, plaintiff argued that Bache’s nonsignatory employees, Kwee and Selbst, were not covered by the agreement. The court noted that the Federal circuit courts have consistently held that nonsignatories to arbitration agreements may be bound by the agreement under ordinary contract and agency principles and that all of Kwee’s and Selbst’s alleged wrongful acts were in regard to their handling of plaintiff’s account. The court therefore concluded that the arbitration provision of the agreement between plaintiff and Bache was intended to protect Bache’s employees. Letizia, 802 F.2d 1185.

In the present case, defendant was a disclosed employee of Merrill Lynch. He operated the Peoria Merrill Lynch branch office and all of his alleged wrongful conduct related to his handling of plaintiffs’ account. There is unquestionably strong Federal policy fa-voting arbitration and Nesslage and Letizia are dispositive based on the alleged facts presented herein. The language within the arbitration provision which purports to limit itself to “controversies which may arise between us” clearly protects defendant as a disclosed employee of Merrill Lynch under Federal law.

For all of the aforementioned reasons, the decision of the circuit court of Peoria County dismissing plaintiffs’ cause of action with prejudice is affirmed.

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    CARRIE FRANKE, Plaintiff-Appellant, v. HARRY R. GEYER et al., Defendants-Appellees.
    Third District
    No. 3-89-0647
    Opinion filed March 6, 1991.

      Troha, Troha & Bednarek, of Joliet (Theodore J. Bednarek, of counsel), for appellant.
    Snyder, Jaquays & Washburn, P.C., of Joliet (Michael R. Phillips, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

Plaintiff filed a five-count complaint against her parents for childhood sexual abuse, battery, intentional infliction of emotional distress and breach of parental duty. At the time of filing the plaintiff was 31 years of age. The incidents complained of are alleged to have occurred when she was a minor between the ages of 4 and 16 years of age. The trial court granted defendants’ motion to dismiss concluding that the claims were barred by the statute of limitations. We affirm.

Two questions are presented for review. First, whether plaintiff’s cause of action is barred by the statute of limitations and, second, whether the theory of equitable estoppel is applicable to this case.

Section 13 — 202 of the Hlinois Code of Civil Procedure provides that actions for personal injuries shall be brought within two years from the accrual of the cause of action. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 202.) Section 13 — 211 states that for persons under 18, the period of limitations begins to run after the person reaches 18 years of age. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 211.) In this case, 13 years have passed since plaintiff turned 18 years of age. Plaintiff alleges the “discovery rule” should extend the limitations period under the allegations of her complaint.

The discovery rule relating to the statute of limitations postpones the starting of period of limitations until “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) Plaintiff’s primary argument is that she was unaware of the extent of her injuries resulting from the alleged abuse until July of 1987 when she was advised of the causal connection by her marriage counselor. Plaintiff parallels her situation to those victims of asbestosis, who may know of exposure to asbestos and have medical problems, but do not discover the causal link until after the statute of limitations has expired.

Plaintiff cites Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864, wherein the plaintiff, an asbestos insulator, had been exposed to asbestos for many years. Sometime during those years plaintiff developed lung problems for which he sought medical help. He was not told that his condition was asbestosis until years later. After learning of his condition, plaintiff commenced a strict liability action within two years. Our supreme court determined that the discovery rule applied to plaintiff’s situation. In reaching this result, the court first concluded that plaintiff did not know or reasonably could not have known of the cause of his injury prior to his diagnosis. Second, the court found the hardship posed to plaintiff in time barring his cause of action outweighed the prejudice to defendant in applying the discovery rule. Finally, the court determined that whether plaintiff either knew or reasonably should have known of his injury was a question of fact. (Nolan, 85 Ill. 2d 161, 421 N.E.2d 864.) In attempting to expand on the balancing test referred to by the Nolan court, plaintiff also cites our previous decision of Lincoln-Way Community High School District 210 v. Village of Frankfort (1977), 51 Ill. App. 3d 602, 367 N.E.2d 318, wherein we stated that in applying the discovery rule “the court will balance the hardship on the plaintiff caused by the bar of his suit against the burden on the defendant to obtain proof of his defense.” Lincoln-Way, 51 Ill. App. 3d at 608, 367 N.E.2d 318.

We acknowledge the existence of the balancing test in applying the discovery rule. In this case, however, the inquiry does not reach the point of applying the balancing test. Prior to balancing the hardships and burdens, the court must first determine whether or not the discovery rule applies. In other words, we must first determine whether the plaintiff either knew or reasonably should have known both that an injury had occurred and that it was wrongfully caused when plaintiff reached 18 years of age. Although this initial question is generally one of fact, a court may make such a determination upon a motion to dismiss so long as such a conclusion is the only one to be drawn from plaintiff’s pleadings. See Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.

In this case plaintiff alleges that as a result of the alleged abuse she was “in constant dread and apprehension that such acts were about to occur” and that her emotional distress began “from the time the abuse started to the present.” From these facts, which we take as true, we conclude that plaintiff had sufficient information concerning her injury and its cause to put her on inquiry as to whether actionable conduct was involved. The fact that plaintiff may not have discovered the full extent of her injuries (or that she had a cause of action) until some 13 to 14 years later is not the test. A plaintiff need not know all of the facts or circumstances in order for the statute of limitations to begin running.

Plaintiff cites Johnson v. Johnson (N.D. Ill. 1988), 701 F. Supp. 1363, wherein the Federal district court held that Illinois would apply the discovery rule in the context of a sexual abuse case where the statute of limitations had expired. In Johnson the plaintiff alleged she had suppressed memory of the alleged sexual abuse and was unaware of her injuries until she remembered the trauma while in psychotherapy years later. Subsequent to Johnson, by Public Act 86 — 1346, codified as section 13 — 202.2 of the Illinois Code of Civil Procedure, our State legislature has created a cause of action for childhood sexual abuse and has created a statute of repose with an outside limitation of 12 years from the date the abused person attains the age of 18 years. We agree with the Johnson court that the discovery rule applies to these types of cases, but we disagree with plaintiff’s position that it applies to this case.

Plaintiff also contends that the doctrine of equitable estoppel should apply. We disagree. Equitable estoppel theoretically prevents a party from taking advantage of his own wrongdoing. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869.) The doctrine applies to prevent a litigant whose conduct has caused the plaintiff to forbear filing suit from asserting the statute of limitations as a defense. (Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 475 N.E.2d 260.) The necessary elements are conduct by the defendant and reasonable reliance by the plaintiff. The test is whether, considering all the circumstances of the case, conscience and honest dealing require that the defendant be estopped. (Lincoln-Way, 51 Ill. App. 3d 602, 367 N.E.2d 318.) Plaintiff suggests that this case involves a special relationship which would excuse plaintiff’s lack of diligence in pursuing her claim. Even assuming arguendo that a special relationship existed between plaintiff and defendant, plaintiff still has failed to plead any facts which would indicate that defendant somehow discouraged plaintiff from filing suit. Forbearance on plaintiff’s part, caused by defendant, is still a requirement of equitable estoppel even in the special relationship scenario.

Accordingly, the decision of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.


text:
    ROGER THOMAS, Plaintiff-Appellee and Cross-Appellant, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    Third District
    No. 3-90-0279
    Opinion filed March 6, 1991.

      Gary D. Nelson, of Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, of counsel), for appellant.
    Richard W. Zuckerman, of Peoria, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court;

The defendant, General American Life Insurance Company, appeals a determination by the trial court holding that defendant’s denial of an insurance benefit claim was arbitrary and capricious. We reverse. Plaintiff filed a cross-appeal contesting the amount of the trial court’s award of plaintiff’s attorney fees. Since we have reversed the trial court, the issue of plaintiff’s attorney fees will not be discussed. It is moot.

The plaintiff, Roger Thomas, filed a complaint against the defendant to recover benefits under a group medical insurance policy. Plaintiff sought to recover for surgery performed to correct a deformity of his son’s ears. Plaintiff alleged that the bilateral otoplasty surgery was performed to alleviate what is known as “lop ear syndrome.” Defendant denied benefits because it believed the surgery was cosmetic in nature. Defendant’s policy covered medical expenses for the therapeutic treatment of an injury or sickness but excluded payment for cosmetic, plastic, reconstructive, or restorative surgery unless the expenses were incurred to repair a disfigurement caused by a birth defect.

The defendant filed a motion to dismiss on the basis the employee’s State law and common law claims were preempted by the Employee Retirement Income Security Act of 1974 as amended (ERISA) (29 U.S.C. §1001 et seq. (1988)) and plaintiff’s sole cause of action must take the form of an ERISA claim. After the trial court granted defendant’s motion, plaintiff filed an amended complaint pursuant to 29 U.S.C. section 1132.

Defendant filed a motion for summary judgment on the basis the surgery performed on Cortney Thomas was for the cosmetic correction of protuberant ears. Plaintiff filed a response to the motion for summary judgment stating there was a genuine dispute as to certain material facts. Plaintiff alleged the alteration of the external ear may have therapeutic value. Plaintiff further alleged the variation of the external ears may be characterized as a congenital deformity. Following a hearing, the court denied the motion. Defendant filed a motion to reconsider the denial of summary judgment on the basis plaintiff admitted in its response to the motion for summary judgment that the surgery performed was for a cosmetic correction of protuberant ears. The court denied defendant’s motion to reconsider.

The case proceeded to trial on June 7, 1989. The medical evidence produced at the time of trial consisted of the evidence depositions of plaintiff’s treating physician, Dr. Harrison Putnam, and defendant’s medical expert, Dr. Robert Hart.

Dr. Putnam testified he first saw Cortney Thomas on March 13, 1985, for an ear infection. Dr. Putnam observed Cortney had an unsightly protrusion of the ears caused by the overdevelopment of the concave concha and a flattened antihelix with an absence of an antihelic fold. In 1986, Cortney’s parents called Dr. Putnam’s office requesting plastic surgery on his ears.

Dr. Putnam performed an otoplasty on Cortney to correct the prominence of the ear and to create a normal looking ear. According to Dr. Putnam, lop ear syndrome is considered a birth deformity, but is not considered a birth defect. Protuberant ears, in Dr. Putnam’s opinion, could not properly be described as a birth defect. Dr. Putnam testified further that a birth defect usually consists of the absence of a body part or a portion of a body part whereas a deformity is a deviation from the norm in terms of development. Dr. Putnam also stated he considered the surgery to be medically necessary as a result of the psychological distress Cortney suffered at school because of the appearance of his ears.

Dr. Robert Hart, defendant’s expert, also testified by way of an evidence deposition. Dr. Hart is a pediatrician whose practice includes the diagnosis and treatment of birth defects and psychological illness. It was Dr. Hart’s opinion the surgery performed on Cortney was cosmetic. Dr. Hart further opined the surgery performed was not therapeutic treatment of illness or injury as Cortney was not suffering from any type of psychological illness.

On August 1, 1989, the trial court ruled the congenital condition known as “lop ear syndrome” was a birth defect within the meaning of the insurance policy. The court further ruled the surgery performed was for a correction of a disfigurement caused by a birth defect and the treatment afforded to Cortney was therapeutic because it improved the child’s well-being. The court concluded the failure of the defendant to pay was arbitrary and capricious.

Plaintiff contends the standard of review to be applied in this case is a de novo standard of review. Plaintiff asserts that under a de novo standard, the trial court did not err by ruling the defendant must pay the medical benefits for the plaintiff’s surgery. Defendant contends, however, the plaintiff waived this argument by not raising this point before the trial court. Defendant posits, alternatively, that under any appropriate standard of review, this ease must be reversed. We agree.

The question of the appropriate standard of review in ERISA cases was resolved by the Supreme Court of the United States on February 21, 1989, in the case of Firestone Tire & Rubber Co. v. Bruch (1989), 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948. Although the parties and the trial court overlooked the Supreme Court’s decision at the trial level, we are cognizant of the fact this opinion changed the standard of review of ERISA cases and must be considered here.

In Firestone, the court stated:

“Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” (489 U.S. at 115, 103 L. Ed. 2d at 95, 109 S. Ct. at 956.)

Thus, a plan that omits definitions or provisions about construction mandates de novo review by the trial court, while a plan that expressly grants the administrator or trustee leeway in his/her interpretation of the plan yields deferential review. See Sisters of the Third Order of St. Francis v. SwedishAmerican Group Health Benefit Trust (7th Cir. 1990), 901 F.2d 1369.

It is patently clear the plan in the foregoing case does not expressly confer discretionary authority on the plan administrator to interpret the language of the health plan. In our opinion, the de novo standard of review is required here. However, it is not necessary to reach a determination on this point because under either standard of review, we find the evidence overwhelmingly shows the trial court’s decision is not supported by the record and must be reversed. See Rizzo v. Travelers Insurance Co. (1989), 193 Ill. App. 3d 67, 549 N.E.2d 810; Kennedy v. Deere & Co. (1989), 192 Ill. App. 3d 18, 548 N.E.2d 610.

Where the provisions of an insurance policy are clear and unambiguous, they should be literally interpreted and strictly construed. (Equity General Insurance Co. v. Patis (1983), 119 Ill. App. 3d 232, 456 N.E.2d 348.) Moreover, a decision to deny benefits is not to be reversed unless it is not supported by substantial evidence. (Nevill v. Shell Oil Co. (9th Cir. 1987), 835 F.2d 209.) The policy in question covers expenses incurred due to injury or sickness. A covered expense means only the expense incurred for medical care and supplies which are necessary and customary and which are prescribed by a doctor for the therapeutic treatment of injury or sickness, and further, which are not excluded under the exception provision of the policy. Benefits are not payable for cosmetic, plastic, reconstructive or restorative surgery unless such covered expenses are incurred for the repair of a disfigurement caused by accidental injury or a birth defect.

In the instant case, the undisputed evidence at trial demonstrates the surgery performed on Cortney was cosmetic. The purpose of the surgery was to improve Cortney’s appearance. Even the plaintiff’s own treating doctor admitted the purpose of the surgery was aesthetic or cosmetic in nature. Cosmetic surgery is plastic surgery which primarily seeks to alter the appearance or improve the appearance of a body part. Cortney’s surgery was performed to correct the aesthetic appearance of his ears.

Once it was established the surgery was cosmetic, the trial court erroneously found the surgery performed on Cortney was for a correction of a disfigurement caused by a birth defect. Defendant’s policy would only cover cosmetic surgery incurred to repair a disfigurement caused by accidental injury or a birth defect. Plaintiff’s treating doctor confirmed “lop ear syndrome” was not a birth defect. According to plaintiff’s doctor, “lop ear syndrome” is considered a birth deformity because it does not consist of the absence of the ear itself. A birth defect usually consists of the absence of a body part whereas a deformity creates a deviation from normal development. While the absence of the external ear accurately shows an example of a birth defect, the variation in the external appearance of the ear, such as plaintiff’s, does not exemplify a defect.

The trial court improperly held further that the treatment given to Cortney was therapeutic because it improved the child’s well-being and provided a psychological benefit as well. However, there is absolutely no evidence in the record to support this conclusion. Although the policy does not define the term “therapeutic,” there was absolutely no evidence adduced at trial to show that Cortney suffered from psychological problems as a result of his appearance. In fact, Cortney’s mother testified that no one had ever diagnosed Cortney as suffering from a psychiatric or psychological illness, nor did he ever receive any kind of psychological counseling or treatment. Even plaintiff’s doctor stated he never referred Cortney to a psychiatrist or psychologist for treatment even though he was aware Cortney was being harassed at school about his ears. Plaintiff’s doctor did testify the surgery was partially therapeutic because a psychological benefit would be achieved. However, taken to a logical extreme, cosmetic surgery always fulfills some psychological advantage. The whole purpose behind cosmetic surgery is to improve one’s appearance. This is exactly the reason why plaintiff’s son obtained surgery.

Based on the foregoing, the judgment of the circuit court of Tazewell County in favor of the plaintiff is reversed. Accordingly, we need not consider plaintiff’s cross-appeal for attorney fees.

Reversed.

SLATER and GORMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. THOMAS PAUL WEST, Petitioner-Appellant.
    Third District
    No. 3-90-0234
    Opinion filed March 6, 1991.

      Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellant.
    William Herzog, State’s Attorney, of Kankakee (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The petitioner, Thomas Paul West, appeals the dismissal of his post-conviction petition. We affirm.

The record shows that on August 20, 1981, the petitioner was convicted of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2). The trial court subsequently sentenced him to a six-year term of imprisonment. On appeal, this court vacated the sentence and remanded the cause for resentencing. (People v. West (1982), 106 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).) On February 4, 1983, the trial court imposed a four-year prison sentence to be followed by a two-year mandatory supervised release period.

On January 19, 1990, after the petitioner had completed his prison sentence and mandatory supervised release period, he filed a pro se petition for post-conviction relief. The State moved to dismiss the petition, raising several grounds for dismissal. The trial court granted the State’s motion.

The parties agree that the petitioner presently faces the death penalty for a murder committed in Arizona. The parties also agree that the petitioner’s voluntary manslaughter conviction was an aggravating factor in the death sentence.

On appeal, the petitioner argues that the court erred in dismissing his petition. He contends that before dismissing the petition, the court should have determined without any input from the State whether the petition was frivolous or patently without merit. See Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a).

The State responds that the petition was untimely because it was filed after the petitioner had completed his prison sentence and mandatory supervised release period. Consequently, it argues that the petitioner lacks standing to raise any issues concerning the dismissal.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) states that only persons “imprisoned in the penitentiary” may bring a post-conviction petition. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1.) Accordingly, a person who has served his prison sentence and mandatory supervised release period generally may not file a post-conviction petition. (People v. Farias (1989), 187 Ill. App. 3d 879, 543 N.E.2d 886.) Further, the use of a prior conviction to enhance a sentence does not create a right to file a post-conviction petition concerning the prior conviction. People v. Villanueva (1988), 174 Ill. App. 3d 791, 529 N.E.2d 87; People v. Collins (1987), 161 Ill. App. 3d 285, 514 N.E.2d 499.

The record establishes that the petitioner had completed his prison sentence and mandatory supervised release period at the time he filed the instant petition. Moreover, under the reasoning in Villanueva and Collins, the use of his prior conviction to enhance his present sentence did not give him the right to file a post-conviction petition. Since the petitioner could not file the instant petition, his argument concerning its dismissal is moot. Accordingly, we affirm the dismissal of the petition.

The judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

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


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. PEVE, Defendant-Appellant.
    Third District
    No. 3-90-0004
    Opinion filed March 4, 1991.
    Modified opinion filed March 20, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The trial court convicted the defendant, Michael A. Peve, of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12— 16(c)(1)(i)). The court subsequently sentenced him to a seven-year term of imprisonment. The defendant appeals.

The record shows that the State charged the defendant with touching the clothed vagina of J.E while she was under the age of 13. At trial, J.E. testified that in early March of 1989, when she was 11 years old, she lived with the defendant, her mother, and her lVs-year-old stepbrother, J. One afternoon, while she was watching television, the defendant returned home with J. After the defendant put J. to bed, he joined J.F. on the couch. First, he placed his hand on her knee. He then moved his hand along her leg and touched the crotch of her underpants. She said that this touching lasted a short time.

J.F. further testified that she could not recall whether the defendant was sleepy at the time. She later testified, however, that neither she nor the defendant was asleep prior to the touching.

Officer Michael Roman testified that he and DCFS Investigator David Allred interrogated the defendant at the Moline police department on April 5, 1989. The defendant admitted to Roman that on one occasion he had moved his hand along J.F.’s leg and that he may have touched the crotch of her underwear. When he realized what he had done, he felt guilty and left the room. He could not recall whether he was sexually aroused by the touching.

Investigator Allred’s testimony generally corroborated Officer Roman’s testimony. He further recalled, however, that the defendant admitted that he might have been sexually aroused by the touching.

J.W., J.F.’s 11-year-old cousin, testified that J.F. told her in the summer of 1989 that the defendant had not touched her. J.F. said that she had made up the allegation because she was angry at the defendant for making her clean her room.

J.F.’s mother testified that normally she and J.F. were open with each other. Nonetheless, J.F. had not told her about the incident until after the authorities had questioned the defendant.

The defendant testified that he was presently on parole for a previous aggravated criminal sexual abuse conviction. Since that offense, he had attended counseling sessions. He denied committing the instant offense, although he recalled an incident that may have been the basis for the allegation. On that occasion, he was asleep on the couch while J.F. was seated next to him. When he awoke and rose to get up, his right arm touched her knee. The touching lasted about five seconds.

The defendant stated that he told Roman and Allred that he had not committed the offense, though he admitted that on one occasion he had touched J.F.’s leg. He also told them that he had never been sexually aroused by touching J.F.

The trial court found the defendant guilty of the charged offense. Of note in the presentence report was that in 1986 the defendant had been convicted of aggravated criminal sexual abuse, for which he received a three-year sentence. Following the sentencing hearing, the court imposed a seven-year term of imprisonment.

On appeal, the defendant first argues that he was not proved guilty beyond a reasonable doubt. He contends that the evidence showed that he did not knowingly touch J.F., and that if he did do so, it was not for his sexual arousal. He asks this court to either reverse his conviction or reduce it to the crime of attempt.

To prove the offense of aggravated criminal sexual abuse, the State had to show that the defendant committed an act of sexual conduct with the victim. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(1)(i).) Sexual conduct includes the intentional or knowing touching of the sex organs of the victim, either directly or through clothing, for the purpose of the defendant’s sexual arousal. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e).

In determining whether the defendant was proved guilty beyond a reasonable doubt, this court must view all of the evidence in the light most favorable to the State in order to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Additionally, this court should not substitute its judgment regarding the credibility of the witnesses for that of the trier of fact. People v. Williams (1989), 185 Ill. App. 3d 840, 541 N.E.2d 1175.

In the instant cáse, the victim gave credible testimony regarding the offense. Moreover, the defendant’s explanatory testimony was impeached by his statement to police and by his prior conviction within the last 10 years. Viewing the evidence in the light most favorable to the State, we hold that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The defendant next argues that the trial court abused its discretion in imposing his sentence. Noting that he had attempted to rehabilitate himself and that his conduct had not caused physical harm, he contends that the court should not have imposed a seven-year sentence.

It is well settled that a trial court’s sentencing decision is entitled to great deference and will not be altered on review unless the court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In imposing a sentence, the court may consider the defendant’s previous criminal history, as well as the fact that he was on parole when he committed the offense. People v. Edwards (1990), 195 Ill. App. 3d 454, 552 N.E.2d 358.

The record shows that the defendant had a previous conviction for aggravated criminal sexual abuse and that he was on parole when he committed the instant offense. Although there was some evidence in mitigation, it did not so outweigh the aggravating evidence as to render the sentence an abuse of discretion. We therefore affirm the seven-year sentence.

Lastly, the State requests that we remand this cause so the trial court can certify the defendant as a habitual child sex offender (Ill. Rev. Stat. 1989, ch. 38, par. 222(A)). The defendant responds that the State is effectively appealing an order which it does not have the right to appeal (see 107 Ill. 2d R. 604(a)). The defendant also contends that the State waived this argument by failing to make it in the trial court.

We find it unnecessary to address these issues. Instead, we endorse the position taken by the Fourth District Appellate Court in People v. Taylor (1990), 203 Ill. App. 3d 636, 561 N.E.2d 393. There, the court held that the trial court did not lose jurisdiction to certify a defendant as a habitual sex offender after the 30-day jurisdictional period had expired. Accordingly, since the State has the option of obtaining certification in the trial court, it should seek its remedy in that forum.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER, P.J., and GORMAN, J., concur.