author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD EDWARD LARRY, Defendant-Appellant.
    Second District
    No. 2—88—0441
    Opinion filed April 11, 1990.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Gerald Larry, was charged with attempted murder and entered a plea of guilty. The trial court sentenced him to a 20-year term of imprisonment. Defendant subsequently filed a petition for post-conviction relief, which the trial court denied following a hearing. On appeal, defendant maintains that the petition should have been granted because all four codefendants were represented by attorneys who worked for the Winnebago County public defender’s office, thus creating a conflict of interest. We affirm.

The attempted-murder charge resulted from the shooting of Terry Gagliano on February 12, 1985. At about 5 p.m. Gagliano, who operated a pizza parlor, received a telephone call requesting the delivery of pizza and soft drinks to an apartment building in Rockford. Gagliano was admitted into the building by a young man who stated he had placed the order. He took Gagliano to a door off an interior hall and knocked on the door. When there was no response, he told another man who had just come down a flight of stairs to return upstairs and tell someone to come down and open the door. Gagliano then saw a third man go down the hall.

Gagliano became suspicious at this point. He handed the pizzas and soft drinks to the man who had let him in the building and stated that he had forgotten something but would be right back. Gagliano then turned and began to walk away. He thought he saw defendant standing down the hallway. Gagliano was shot in the back. Although he was seriously injured, Gagliano was able to run away. The assailant fired a second shot, but it did not strike Gagliano.

Shortly after the shooting, the Rockford police arrested four youths: defendant, Jay Tomlinson, Darnell Heavy, and Antonio Craig. Craig was charged as a juvenile. All four youths gave statements to the police in which they admitted that the four planned to order pizza and then rob the person who made the delivery. Heavy implicated defendant as the shooter, while defendant stated Tomlinson was the shooter. Defendant stated that he and Craig were supposed to stab the delivery person. Tomlinson denied he was the shooter and stated he did not know who was. Craig also stated he did not know who the shooter was but he did not think it was defendant. The police were not able to establish who fired the shots, although they did establish that the weapon used was a .32 caliber pistol. Craig said in his statement that he saw Tomlinson early on the morning of the shooting and Tomlinson possessed a .32 caliber revolver at the time.

All four of the accused were represented by attorneys from the Winnebago County public defender’s office. Defendant’s attorney was Daniel King. Tomlinson was represented by Gary Pumilia, the head of the office. Heavy’s attorney, Karen Sorenson, sought and received a substitution of judges, which effectively severed Heavy’s case. King presented a motion to sever defendant’s trial from Tomlinson’s on the basis of the inconsistent statements made by the codefendants to the police. The trial court granted the motion on May 24, 1985.

On June 7, 1985, during a court appearance, defendant requested appointment of a new attorney, stating that he did not believe King was ready to go to trial because, while King had visited defendant a few times, he had not discussed the case or its progress. The trial court denied defendant’s motion. Defendant entered an open plea of guilty on June 24,1985.

In exchange for the plea, the State agreed that defendant’s sentencing hearing could be continued to a date after Darnell Heavy’s. Heavy had entered into a plea agreement under which the State agreed to recommend an eight-year sentence. The trial court imposed an eight-year term of imprisonment upon Heavy. King argued at defendant’s sentencing hearing that defendant’s sentence should be no greater than Heavy’s.

King also argued that the evidence pointed to Tomlinson as the shooter, relying primarily upon Antonio Craig’s statement to the police. The prosecutor stated that it could not be determined who fired the shots. As a condition of the plea agreement, the State agreed that it would not argue defendant was the shooter. The State also agreed to allow defendant to present the testimony of Mary Martin, a social worker, that Detective Slaughter of the Rockford police department had told her he believed Tomlinson was the shooter. Martin testified to that effect at the sentencing hearing.

Defendant filed a motion asking the trial court to reconsider the 20-year sentence that was imposed. The trial court denied the motion. Defendant then filed a motion to vacate his guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)), which the trial court also denied. This court, dismissed defendant’s direct appeal for lack of jurisdiction because the Rule 604(d) motion was not timely filed. People v. Larry (1987), 153 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23).

On June 12, 1987, defendant filed his petition for post-conviction relief, which alleged ineffective assistance of counsel due to King’s failure to timely file the Rule 604(d) motion and that a conflict of interest existed because all four codefendants were represented by separate attorneys in the Winnebago County public defender’s office. Daniel King testified that at the time he represented defendant, there were five or six felony attorneys in that office. Their offices were located in close proximity to one another. These attorneys shared the services of one secretary and two investigators. The attorneys relied upon an honor system to maintain the privacy of their pending case files, which were kept in their offices.

According to King, representation of multiple codefendants by the same public defender’s office creates feelings of awkwardness, tension, and discomfort among the attorneys in the office. This is because the attorneys may each try to get a favorable deal for their client by offering their client’s testimony against the others to the State. Additionally, the attorney may be forced to attack another lawyer’s client, and it creates discomfort when that lawyer is working in the same office. King therefore felt that allowing lawyers from the same public defender’s office to represent multiple codefendants can inhibit the aggressiveness of the attorneys on behalf of their clients. King stated that there was tension between him and Gary Pumilia regarding the instant case, although they were not at one another’s throats. King did not file a motion to withdraw from the case because this would have been contrary to an office policy set by Pumilia.

King testified that he had some conversations with Pumilia regarding defendant’s case, although neither attorney discussed specific matters which could have damaged their clients’ cases. King stated that Pumilia had the power to fire him and that Pumilia would go to the county board to request raises for the attorneys in the office.

King was not sure if he offered the State defendant’s testimony against the others in exchange for a favorable sentence. Regarding defendant’s decision to enter an open plea of guilty, King stated that he presented the options to defendant, which included a negotiated plea of 14 years, and defendant decided to enter the open plea. With the exception of the late filing of defendant’s Rule 604(d) motion, King felt he had done a decent job representing defendant. King was not sure if he would have handled the case any differently if the other defendants had not been represented by his colleagues in the public defender’s office.

Defendant also testified at the hearing. Defendant stated that King never raised the possibility of having him testify against the other defendants in exchange for a favorable sentence. Defendant acknowledged it was his decision to reject the plea offer from the State of a 14-year sentence and to enter an open plea of guilty.

Gary Pumilia agreed with King that representation of multiple codefendants by the public defender’s office creates feelings of tension and awkwardness within the office. Pumilia stated that defendant did not suffer as a result of the situation because King is a preeminent criminal defense attorney. According to Pumilia, King had about 20 years of experience handling criminal cases.

Although the trial judge expressed concern about his failure to warn defendant about the possible conflict in representation, he denied the petition for post-conviction relief. After defendant’s motion for reconsideration was denied, he filed a timely notice of appeal.

Criminal defendants enjoy a sixth amendment right to effective assistance of counsel which includes assistance by a lawyer whose allegiance to his or her client is not diluted by conflicting allegiances or inconsistent obligations. (People v. Spreitzer (1988), 123 Ill. 2d 1, 13-14.) Our supreme court has therefore considered cases in which defense counsel has a tie to a person or entity which would benefit from unfavorable verdicts with regard to defendant as per se conflicts of interest and has reversed convictions unless defendant was made aware of the conflict and knowingly waived the right to conflict-free counsel. (Spreitzer, 123 Ill. 2d at 16-17.) In such cases, there is no need to show the attorney’s performance was adversely affected by the conflict. 123 Ill. 2d at 15.

Cases involving joint or multiple representation of codefendants are not considered per se conflicts of interest. (123 Ill. 2d at 17.) This includes cases such as the one at bar in which each codefendant is represented by a separate member of the same public defender’s office. (See People v. Nelson (1980), 82 Ill. 2d 67, 72; People v. Spicer (1979), 79 Ill. 2d 173, 186; People v. Robinson (1979), 79 Ill. 2d 147, 169.) In situations involving joint or multiple representation, however, if counsel brings a potential conflict to the trial judge’s attention at an early stage of the proceeding, the trial court has a duty to either appoint separate counsel or take adequate measures to determine whether the risk of conflict is too remote to warrant separate counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178; Spreitzer, 123 Ill. 2d at 18.) If the trial court fails to fulfill this duty, a conviction will be reversed without a showing that the attorney’s performance was affected by the purported conflict in the absence of a knowing waiver by defendant of conflict-free counsel. 123 Ill. 2d at 18.

If the trial court is not informed of the potential conflict, the conviction will only be reversed by a reviewing court if defendant shows an actual conflict of interest adversely affected counsel’s performance. (Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719; Spreitzer, 123 Ill. 2d at 18.) Hypothetical or speculative conflicts are not sufficient. (People v. Robinson (1979), 79 Ill. 2d 147, 169.) Defendant must point to some specific defect in counsel’s strategy, tactics, or decision making attributable to the conflict in order to gain a reversal. (Spreitzer, 123 Ill. 2d at 18.) Defendant is not required to show, however, that the conflict contributed to his conviction. 123 Ill. 2d at 18-19.

Although our supreme court held in Nelson, Spicer, and Robinson that representation of multiple codefendants by separate attorneys in the same public defender’s office does not create a per se conflict of interest, none of those cases addressed the precise situation in the case at bar, where a codefendant is represented by the supervisor of defendant’s attorney. We believe the Spreitzer case provides guidance in this area. In Spreitzer, defendant was represented by an assistant public defender. During the latter stages of the case, the person in charge of that public defender’s office was a man who had participated in the prosecution of defendant during the early stages of the case. Although this placed defendant’s attorney in a position where she might have to attack decisions which were made by her current boss when he was helping to prosecute the case, our supreme court ruled there was no per se conflict of interest. (Spreitzer, 123 Ill. 2d at 22.) Similarly, we believe there was no per se conflict here even though King could have been placed in the uncomfortable position of attacking his supervisor as well.

Since there was no per se conflict of interest and since the potential conflict was never brought to the trial court’s attention by defendant, we must determine whether defendant made a showing that the purported conflict adversely affected Daniel King’s performance. We conclude defendant failed to make such a showing.

According to defendant, King could have handled the case more aggressively were it not for the alleged conflict. Defendant suggests that King should have recommended going to trial and arguing at trial that Tomlinson was the shooter, while defendant withdrew from the crime.

King testified that he explained defendant’s options to him and defendant decided to enter an open plea of guilty. Defendant testified that he made this decision himself. A reversal of defendant’s conviction would only be justified if the alleged conflict caused King not to recommend going to trial because of his reluctance to attack Pumilia’s client when he would have otherwise made such a recommendation.

The record clearly establishes this was not the case. When King entered into the plea agreement with the State which led to defendant’s open plea, King made sure he would be able to assert Tomlin-son was the shooter and that the State would not rebut this assertion with evidence showing defendant was the shooter. The State agreed to allow defendant to present Mary Martin’s hearsay testimony that a Rockford police detective told her that he believed Tomlinson was the shooter. King vigorously argued at defendant’s sentencing hearing that Tomlinson was the shooter, relying on Martin’s testimony and the statement of Antonio Craig to the police. King also convinced the State to agree that defendant’s sentencing hearing could be held after Darnell Leavy’s, so he could argue that defendant’s sentence should be no greater than Leavy’s and that only Tomlinson should receive a greater sentence.

It is inconceivable that King’s alleged reluctance to attack Pumilia’s client could have caused him to forego recommending a trial when, in fact, King vigorously attacked Tomlinson at the sentencing hearing, even though such an attack could have harmed Tomlinson, who was subsequently sentenced by the same judge. The record shows that King zealously advocated his client’s position, guarded his interests, and that the purported conflict did not diminish his zeal in any manner. Since defendant failed to show the alleged conflict affected King’s strategy, tactics, or decision-making, the trial court correctly denied the relief requested in the post-conviction petition.

For the foregoing reasons, the judgment of the circuit court of ' Winnebago County is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 31, AFL-CIO, Petitioner, v. ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—89—0529
    Opinion filed March 28, 1990.
    Rehearing denied May 15, 1990.

      Gilbert Feldman, of Cornfield & Feldman, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Margaret Kostopulos, of Office of Chief Judge, of Chicago, for respondent Chief Judge of the Circuit Court of Cook County.
   JUSTICE GREEN

delivered the opinion of the court:

On June 27, 1989, proceeding pursuant to section 11(e) of the Illinois Public Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e)), the American Federation of State, County, and Municipal Employees, Council 31, AFL-CIO (union), filed a petition in this court for judicial review of a decision of the Illinois State Labor Relations Board (Board) made on May 25, 1989. The decision found respondent, the Chief Judge of the Circuit Court of Cook County (employer), did not violate sections 10(a)(1) or (a)(4) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 1610(a)(1), (a)(4)) by refusing to bargain over the reinstallation of a field-work requirement for probation officers of that court who worked with adult offenders. The employer has filed a motion, contending we lack jurisdiction because the petition for judicial review was not timely filed. We hold we do have jurisdiction, and we affirm.

These proceedings concern the actions of the union and the employer after the union filed a representation petition with the Board in June 1987 pursuant to section 9(a)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 1609(a)(1)) seeking to become the exclusive representative of a bargaining unit composed of all the adult probation officers of the circuit court of Cook County. The Board ordered an election, which was held on November 18, 1987, at which the union prevailed. On April 27, 1988, the Board certified the union as the exclusive representative. The evidence was undisputed that the employer had refused to bargain with the union concerning a certain direction given to the probation officers in October 1987 in regard to field work they were required to perform and continued to do so up to the time of the proceedings involved here.

On January 27, 1988, the union filed an unfair labor practice charge with the Board pursuant to section 11 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1611), and then the following procedures, all in conformity to section 11, took place. A complaint was issued. A hearing was held before a hearing officer on November 17, 1988. She issued a recommended decision and order to the Board. The other parties then filed timely responses to that document, and the Board issued its decision and order on May 25, 1989. (Cook County Circuit Court (Chief Judge), 5 Pub. Employee Rep. (Ill.) par. 2024, case No. S—CA—88—83 (Illinois State Labor Relations Board, May 25, 1989).) On that date, the parties were served with notice of the decision. The Board held the only issue raised by the union concerned the duty of the employer to bargain with the union during the time frame described, and held the employer had no duty to bargain until the union was certified by the Board on April 27, 1988. On judicial review, the union maintains the Board was in error (1) in holding a duty to bargain did not exist earlier; and (2) in not considering whether the issuance of the direction to the probation officers in October 1987 was, of itself, an unfair labor practice.

First, we must decide whether we have jurisdiction to decide this case. As we have indicated, the Board’s order was entered on May 25, 1989, and the petition for administrative review was filed on June 27, 1989, which was a Tuesday. Thus, 33 days elapsed between the entry of the order and the filing of the petition. The employer’s motion to dismiss the petition for review contends Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) requires a filing within 30 days of the entry. The union maintains the provision of section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3— 103) providing for a 35-day period after service of notice of the decision is applicable. The parties do not dispute that timely filing of the petition is necessary for us to have jurisdiction. The question with which we are confronted involves the complicated doctrine of separation of powers between the supreme court and the legislature in regard to the making of procedural rules for legal proceedings and consideration of the doctrine of stare decisis.

In regard to the jurisdiction of this court, section 6 of article VI of the Illinois Constitution of 1970 states:

“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court *** [with minor exceptions not applicable here]. The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts. *** The Appellate Court shall have such powers of direct review of administrative action as provided by law.” (Emphasis added.) Ill. Const. 1970, art. VI §6.

Acting pursuant to its constitutional power to provide by law for direct review to the appellate court from administrative action, the General Assembly provided as follows in section 11(e) of the Act:

“A charging party or any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may apply for and obtain judicial review of an order of the Board entered under this Act, in accordance with the provisions of the Administrative Review Law, as now or hereafter amended, except that such judicial review shall be afforded directly in the appellate court ***.’’ (Emphasis added.) Ill. Rev. Stat. 1987, chi 48, par. 1611(e).

Section 3 — 102 of the Administrative Review Law provides in part “[ujnless review is sought of an administrative decision within the time and in the manner herein provided,” judicial review of that decision is barred. (Ill. Rev. Stat. 1987, ch. 110, par. 3—102.) Section 3 —103 of the Administrative Review Law then states:

“Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby. The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his or her last known residence or place of business.
The form of the summons and the issuance of alias summons shall be according to rules of the Supreme Court.” Ill. Rev. Stat. 1987, ch. 110, par. 3—103.

Acting pursuant to (1) the then existing provision of section 3 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 266), and (2) “its constitutional authority to ‘provide by rule for expeditious and inexpensive appeals,’ ” the supreme court promulgated Supreme Court Rule 335 (107 Ill. 2d R. 335), effective July 1, 1984, providing for direct review of administrative orders by the appellate court. (107 Ill. 2d R. 335, Committee Comments, at 443.) At that time, section 3 of the Administrative Review Act provided for power in the supreme court to “make rules of pleading, practice and procedure supplementary to but not inconsistent with” that legislation. (Ill. Rev. Stat. 1971, ch. 110, par. 266.) That provision in regard to the rule-making power of the supreme court was not carried over to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.), probably because recitation of that power was not deemed necessary.

Supreme Court Rule 335(a) provides for the form of the petition to initiate judicial administrative review in the appellate court. Rule 335(b) states that the petition shall be served on parties of record, in-eluding the administrative agency “in the manner prescribed for serving and proving service of a notice of appeal in Rule 303(d).” (107 Ill. 2d R. 335(b).) Rules 335(c), (d), (e), (f), and (g) provide for participation by other parties, the record, time for filing record, time for filing briefs, and stays, respectively. Rule 335(h) then states:

“(1) Insofar as appropriate, the provisions of Rules 301 through 373 (except for Rules 321 through 326) are applicable to proceedings under this rule. ***
(2) Sections 3-101, 3-108(c), 3-109, 3-110, and 3-111 of the Code of Civil Procedure [the Administrative Review Act] are applicable to proceedings to review orders of the agency.” 107 Ill. 2d R. 335(h).

Notably, Supreme Court Rule 335(h) refers to Supreme Court Rule 303, which states the 30-day filing requirement, as being applicable “[i]nsofar as appropriate,” and does not list section 3 — 102 of the Administrative Review Law as being applicable. Thus, tension exists between the rulemaking powers of the judiciary and the legislature in regard to determination of the time limit for seeking judicial review of an administrative decision in the appellate court. Noting these matters, the Appellate Court for the First District recently held, for the first time, in County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 545 N.E.2d 934, appeal allowed (1990), 131 Ill. 2d 558 (Cermak Health Services), that the 30-day provision of Rule 303 prevails over the 35-day provision of section 3 — 102.

The Cermak Health Services court also considered the comments of the committee recommending Supreme Court Rule 335 (107 Ill. 2d R. 335, Committee Comments), which had stated: (1) several provisions of the Administrative Review Act, then in force, were not suitable for judicial review in the appellate court; and (2) the petition described in Rule 335(a) serves the same function as a notice of appeal. That court then discussed the delicate balance between the rule-making power of the judiciary and that of the legislature as last examined in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. The Cermak Health Services court then concluded that to permit a mere inference the legislature intended section 3—103 to apply to administrative review taken directly to the appellate court to prevail over the more direct inference from Supreme Court Rule 335 that Supreme Court Rule 303(a) was to determine the length of the filing period would violate the superior position of the supreme court under the doctrine of separation of powers.

Recognizing the delicate balance in the rulemaking power involved, the Cermak Health Services court distinguished the administrative law provisions involved there (the same as involved here) and the procedural legislation applicable in Peoples Gas, Light & Coke Co. v. Illinois Commerce Comm’n (1988), 175 Ill. App. 3d 39, 529 N.E.2d 671. There, a different division of the Appellate Court for the First District held that an express time frame for judicial review of decisions of the Commerce Commission set forth in section 10—201(a) of the Public Utilities Act (Ill. Rev. Stat. 1985, ch. lll2/3, par. 10— 201(a)) controlled over Supreme Court Rule 303(a). The Cermak Health Services opinion made clear that court was not holding that Supreme Court Rule 303(a) would apply rather than section 11(e) if section 11(e) of the Act had set forth a time frame for filing for review.

We recognize much of the logic of Cermak Health Services, but we deem one significant factor was not taken into consideration. The judicial article of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI) does not appear to treat the power of the supreme court to determine rules of procedure in exactly the same posture with regard to (1) civil and criminal cases in the circuit court; (2) cases on appeal; and (3) judicial review of administrative decisions. Other than the inference of rule-making power arising from (1) the statement of the vesting of judicial power in the courts in section 1, article VI, of the constitution (judicial article) (Ill. Const. 1970, art. VI, §1), and (2) the grant to the supreme court of general administrative and supervisory authority over the courts in section 16 of that article (Ill. Const. 1970, art. VI, §16), the constitution is silent as to the supreme court’s power to make rules concerning procedure in the circuit court. In regard to appeals, the constitution (1) directs the supreme court to “provide by rule for expeditious and inexpensive appeals” (Ill. Const. 1970, art. VI, §16); (2) authorizes the supreme court to provide by rule for appeal of interlocutory orders to the appellate court; and (3) authorizes the supreme court to provide for appeals directly from the circuit court or from the appellate court to the supreme court, when those appeals do not arise as a constitutional right (Ill. Const. 1970, art. VI, §4). In regard to judicial review of administrative decisions, the constitution is silent as to express rulemaking power of the supreme court, but, as we have indicated, the judicial article states that appellate and circuit courts respectively “shall have such power to review administrative action as provided by law.” Ill. Const. 1970, art. VI, §9.

Since the adoption of the amendment to the judicial article of the Illinois Constitution of 1870, effective January 1, 1964 (Ill. Const. 1870, art. VI, as amended), the supreme court has rendered several important decisions concerning its rulemaking power. In People v. Taylor (1971), 50 Ill. 2d 136, 277 N.E.2d 878, and People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495, the court held that, with exceptions not stated in the present judicial article, it had exclusive power to make rules concerning appellate procedure. In People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602, the court held that a statute concerning the conduct of voir dire examination of jurors in criminal cases was void because it infringed upon a supreme court rule on the subject which had been enacted pursuant to the court’s rulemaking power. The Jackson opinion, citing older cases, elaborated upon the existence of the power to make rules of procedure as an inherent part of the judicial power. Recently, in O’Connell (112 Ill. 2d 273, 492 N.E.2d 1322), the court recognized the existence of some concurrent power in the legislature in regard to rulemaking as long as the exercise of legislative power did not infringe upon the court’s constitutional power. The court then struck down legislation permitting a civil plaintiff to voluntarily dismiss its complaint and then refile within a year, to the extent the statute allowed such a party to not comply with a rule requiring diligence in serving process upon defendants. See also People v. Walker (1988), 119 Ill. 2d 465, 519 N.E.2d 890.

Stamos and Taylor seemed to indicate the power in regard to appellate rules was in a different category than that concerning trial practice and was supreme. In People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the court held legislation concerning the appellate court’s review of sentences to be invalid but seemed to consider the rule-making power at the trial and the appellate level to be the same. Such an interpretation is supported by its suggestion in O’Connell that its decision there be compared with that in Stamos. (O’Connell, 112 Ill. 2d at 281, 492 N.E.2d at 1326.) However, except by promulgation of Supreme Court Rule 335 concerning direct review of administrative orders by the appellate court, the supreme court has not passed upon its power to regulate judicial review of administrative decisions.

At the time the union filed its petition for judicial review with this court, the only precedent for the time frame for filing such a petition, when the legislation creating the right of review did not specify the time frame, was City of Benton Police Department v. Human Rights Comm’n (1986), 147 Ill. App. 3d 7, 497 N.E.2d 876. There, the Appellate Court for the Fifth District held the time frame was the 35-day period of section 3 — 103 of the Administrative Review Law. That decision was based upon an interpretation of Supreme Court Rule 335 that it did not cover the time of filing for judicial review. That opinion conceded the power of the supreme court to provide for a rule which would have superseded a legislative determination as to the length of the filing period. A few months earlier, that appellate court had held procedural provisions of the Public Utilities Act (Ill. Rev. Stat., 1988 Supp., ch. 1112/3, par. 10—201; Ill. Rev. Stat. 1987, ch. lll2/3, par. 10—204) concerning judicial review in the appellate court were invalid as infringing on the supreme court’s rulemaking power. (Consumers Gas Co. v. Illinois Commerce Comm’n (1986), 144 Ill. App. 3d 229, 493 N.E.2d 1148.) Dictum of this court had also stated section 3 — 103 was applicable in determining the time frame for administrative review in the appellate court. (Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 902, 493 N.E.2d 1130, 1133.) The decision in CermaJc Health Services is not binding upon us. Under the circumstances we have related, a theory close to that of stare decisis would tend to direct us to follow the precedent in force at the time the union filed its petition.

In an article in a periodical published by the organized bar of this State discussing the plenary nature of the supreme court’s rule-making power, the author described “the review of administrative matters by the appellate court and circuit court” as the only “power over procedure *** reserved to the legislature.” (L. Bonaguro, The Supreme Court’s Exclusive Rulemaking Authority, 67 Ill. B.J. 408, 409 (1979).) The statement of reservation of legislative power referred to was that contained in article VI, sections 6 and 9, of the Illinois Constitution of 1970, which states the appellate and circuit courts respectively “shall have such powers of direct review of administrative action as provided by law.” (Ill. Const. 1970, art. VI, §6; see also Ill. Const. 1970, art. VI, §9.) Thus, at least minor uncertainty exists as to the balance of power between the supreme court and the legislature in regard to procedure for judicial review of administrative decisions. In O’Connell, the supreme court stated its desire, when appropriate, to reconcile with the legislature on rulemaking. (O’Connell, 112 Ill. 2d at 281, 492 N.E.2d at 1326.) In its recent annual report to the legislature, the supreme court recommended the legislature reexamine all procedures for review of administrative decisions in the appellate court with a view toward conforming them to Supreme Court Rule 335.

Accordingly, although we fully agree with the Cermak Health Services court that there is a need for an orderly, uniform procedure for review of administrative decisions in this court, we also recognize the uncertainty evidenced by the City of Benton opinion as to whether Supreme Court Rule 335 should be interpreted to mean that Rule 303(a) determines the time frame for filing here, the uncertainty as to where the power lies in this regard, and the evident desire of the supreme court to avoid a conflict on this point if appropriate legislation is adopted in the future. Coupling these factors with our concern in regard to stare decisis, we elect not to follow Cermak Health Services here and dismiss the union’s petition. Surely, prudent counsel will now file for administrative review in the appellate court within the time frame set forth in Supreme Court Rule 303(a). We should not prejudice those who did not do so in the past. We hold we have jurisdiction.

We now turn to the merits of the case. The following facts are not disputed: (1) at times pertinent, Michael Rohan was the director of probation court services for the employer; (2) in 1984 the Administrative Office of the Illinois Courts gave the employer new guidelines and directed the employer to implement them; (3) one part of those guidelines concerned “field work,” which required probation officers to go to various places to obtain information in regard to how probationers were faring; (4) one aspect of this work involved a visit by the officer in the probationer’s home; (5) concerned with the lack of training of probation officers and concerned that some were arming themselves before making home visits, Rohan issued a memo on October 30, 1986, to all probation officers working with adult probationers directing them to temporarily suspend all home visits; (6) because of the pressure of other matters, Rohan was unable to study the question of field-work training until July 1987, shortly after the union had filed its representation petition; (7) in October 1987, Rohan announced new field-work policy and training requirements, all to take effect January 1, 1988; (8) on November 18, 1987, Larry Spivak, a representative of the union, wrote to Rohan requesting bargaining on various aspects of the new field-work requirements; and (9) Rohan refused to bargain and continued in that refusal up to the time of the initiation of proceedings concerning the allegation of an unfair labor practice.

Section 10(a)(4) of the Act states that an unfair labor practice occurs when an employer refuses to “bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(4).) Section 3(f) of the Act defines an “exclusive representative” as the labor organization historically or voluntarily recognized by the employer (in accordance with the Board procedures) or “designated by the Board as the representative of a majority of public employees in an appropriate bargaining unit.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 1603(f).) The Board determined the union was not “historically recognized by the employer” and had not been “designated” by it as “a representative of a majority” of the employees in the bargaining unit until the Board certified the union as such. Thus, the Board concluded the employer had no duty to bargain until that certification took place on April 27, 1988.

The union points out that, after a union has won a representation election, an employer has a strong incentive to change working conditions in the hiatus period before the union is certified as the representative if the employer can do so without bargaining. A disadvantage to the union resulting from such a change is that it may be required to start bargaining from a weaker position. To avoid this, the union requests we invoke an “at peril” rule, whereunder the employer makes unilateral changes in terms and conditions of employment during the hiatus period subject to the risk that the changes will be invalid if the union is subsequently certified. In support of this theory, the union cites Anchortank, Inc. v. NLRB (5th Cir. 1980), 618 F.2d 1153, and various NLRB decisions, including Evans Rotork, Inc. (1980), 251 N.L.R.B. 660, 105 L.R.R.M. 1345, and Mike O’Connor Chevrolet-Buick-GMC Co. v. NLRB (1974), 209 N.L.R.B. 701, 85 L.R.R.M. 1419. The union deems the application of the “at risk” doctrine most appropriate here, where the only uncertainty holding up certification did not concern the propriety of the election but only whether the County of Cook should have been a respondent to the proceedings as a co-employer.

The cases cited by the union do approve an “at risk” doctrine as described by the union. However, they concern the operation of section 158(a)(5) of the National Labor Relations Act (NLRA), which states an employer commits an unfair labor practice when it refuses “to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a).” (29 U.S.C. § 158(a)(5) (1982).) Section 159(a) of the NLRA then provides the “exclusive representatives of all the employees in [a] unit” shall be those “designated or selected for” collective bargaining. (Emphasis added.) (29 U.S.C. § 159(a) (1982).) In Fugazy Continental Corp. v. NLRB (D.C. Cir. 1984), 725 F.2d 1416, and NLRB v. Allied Products Corp. (6th Cir. 1977), 548 F.2d 644, courts have held that the duty of an employer under the NLRA to bargain with the representative of the employees begins with the election of the representative and not upon certification. In Allied Products, the court deemed the “at risk” doctrine to apply but stated the duty to bargain arose upon the bargaining representative’s election.

We deem the difference between the wording of the applicable provisions of the Act and the NLRA to be significant. Had the legislature intended for the representative to have authority to act upon election or “selection,” it would likely have so stated. An interpretation of the Act by us to require the employer to bargain with the elected representative in the hiatus period before certification or to refuse to do so “at risk” would require us to infer from the Act the existence of such a policy. As the employers subject to the Act are all public bodies or officers, the legislature could have concluded the danger to employees during the hiatus period would be less than when private enterprises are the principal employers as under the NLRA.

The supreme court has stated that, upon judicial review of an administrative decision, the agency’s interpretation of a statute, while not binding on the court, expresses an informed source for ascertaining the meaning of a statute. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 447 N.E.2d 295.) Here, where the union seeks to have us imply the existence of the “at risk” doctrine by analogy to NLRA provisions and as a rule of sound labor policy, the expertise of the Board is particularly helpful in reaching a decision.

The Board’s interpretation of the portions of the Act involved is persuasive. The Board properly held the duty on the employer to bargain did not arise until certification.

The union also maintains the direction of the employer to the probation officers on October 1987 to engage in certain field work was, of itself, an unfair labor practice. Action by an employer in altering working conditions of its employees while an election to determine representation of the employees is pending has often been held to be an unfair labor practice regardless of whether the change is beneficial or detrimental to the employees. (NLRB v. Styletek, Division of Pandel-Bradford, Inc. (1st Cir. 1975), 520 F.2d 275.) The employer and the union present arguments here as to whether this change in working conditions was, in fact, an unfair labor practice. We may not consider these arguments because the Board held the issue was waived. If the Board was correct, we need not consider the issue of the effect of the change. If the Board should have considered the issue, we would send the matter back to the Board for its consideration before we would pass on the issue.

Accordingly, the final issue for us to decide is whether the Board correctly determined the issue was waived. By the terms of section 11(a) of the Act, a person or entity wishing to obtain relief for an unfair labor practice initiates the proceedings by filing a “charge” with the Board. (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).) The Board or its agents then makes an investigation, and, if the Board finds the existence of “a dispositive issue of law or fact the Board shall issue a complaint *** stating the charges.” (Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).) Hearings are then held, and, ultimately, the Board issues its decision.

Here, the amended charge was filed by Larry Spivak as a staff representative of the union. It was on a form apparently furnished by the Board. A place on the form provided for a designation as to which subsections of section 10(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)) were alleged to be violated. Section 10(a) sets forth the various types of conduct on behalf of an employer which constitute an unfair labor practice. Subsections (1) and (4) of section 10(a) were stated to have been violated by the employer. Attached was a typewritten page designated “Basis of Charge.” The results of the representation election and the certification by the Board were stated. The sheet referred to Spivak’s request to bargain and Rohan’s refusal to do so. Reference was then made as to the remedy sought, which was stated in these words:

“1. The union asks the labor board to seek an injunction preventing the employer from unilaterally instituting the field time policy.
2. To cease and desist the application of the field time policy and to bargain over this policy, and its impact.
3. To bargain prior to making any other changes with respect to the wages, hours, and working conditions of employment for bargaining unit employees.”

The complaint charged the employer with violating sections 10(a)(1) and (a)(4) of the Act. As to the issues, the complaint recited the previously described conduct of Rohan in regard to suspending home visits by probation officers and then directing them to engage in field work, which would include home visits. Then, the union’s request for bargaining over the changes in working conditions and Rohan’s refusal to bargain were recited. The employer was then alleged to have violated sections 10(a)(1) and (a)(4) by refusing to bargain. The complaint requested an order requiring the employer to (1) cease and desist from previously described unfair labor practices, and (2) bargain with the union prior to making any further changes in wages, hours, or working conditions. The complaint also requested such other and further relief as required.

Clearly, neither the charge nor the complaint referred to the act of directing the officers to engage in field work such as home visits as an unfair labor practice in itself. For this reason, the Board held the issue to have been waived. Section 10(a)(4) of the Act expressly states that refusal to bargain in good faith is an unfair labor practice. Section 10(a)(1) is a general catch-all subsection. The provision deems it to be an unfair labor practice for an employer “to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in [the] Act,” or to “dominate or interfere” with a union as well as other conduct clearly not material here. (Ill. Rev. Stat. 1987, ch. 48, par. 1610(a)(1).) A practice has developed of determining that when an employer is guilty of a refusal to bargain in good faith, the employer is derivatively guilty of a section 10(a)(1) violation as well. See Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 522 N.E.2d 161.

The union contends the reference in the charge and the complaint to section 10(a)(1) of the Act was sufficient to raise the issue of the change of working conditions as an unfair labor practice in itself. The Board concluded the reference to section 10(a)(1) was intended to make a claim of an unfair labor practice derivative of the section 10(a)(4) alleged violation. We agree. In the context of both the charge and the complaint, this was clearly so. The union made no attempt to have the amended charge or complaint amended to properly set forth allegations of an unfair labor practice other than that arising from a failure to bargain in good faith. The Board properly held the issues were limited to the issue of a failure to bargain in good faith.

Accordingly, the motion to dismiss is denied and the Board’s order on review is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE McLAREN

text:
    RANDY THIEDE, Plaintiff-Appellant, v. JOHN R. TAMBONE et al., Defendants-Appellees (The City of Woodstock, Defendant).
    Second District
    No. 2—89—0797
    Opinion filed April 17, 1990.
    Rehearing denied May 17, 1990.

      Wisch & Dyer, Ltd., and Greenbaum & Leavitt, both of Chicago, for appellant.

      Thomas K. Gerling, of Brydges, Riseborough, Morris, Franke & Miller, of Waukegan, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Randy Thiede, appeals from the circuit court’s denial of his motion for reconsideration; plaintiff’s motion had requested that the court reverse its earlier order granting summary judgment for defendants, John R. Tambone, Patricia Tambone, and the Better Living Institute, Inc., on plaintiff’s negligence claim. Plaintiff contends the trial court erred in granting summary judgment for defendants because defendants owed plaintiff a statutory duty to maintain and repair the sidewalk abutting their property. Plaintiff further contends defendants’ duty arose because they had assumed a special use of the public sidewalk. Alternatively, plaintiff claims that defendants themselves created the defect in the sidewalk and are, therefore, liable to plaintiff for his injuries resulting from falling on the defective area. We reverse the judgment, and remand the cause because plaintiff presented sufficient evidence to raise a genuine issue of material fact, viz., whether defendants themselves caused or contributed to the defective condition of the sidewalk. Defendant, the City of Woodstock, is not a party to the instant appeal.

Defendant Better Living Institute, Inc. (BLI), has owned a house located at 329 Dean Street, Woodstock, Illinois, since approximately 1968. The house contains two apartments and is located on the east side of the street. Defendant John R. Tambone is a shareholder in BLI. In a deposition, Tambone testified that there were no other shareholders except possibly his wife, defendant Patricia Tambone.

A driveway from Dean Street provides access to and parking for defendants’ property. The driveway intersects with the public sidewalk which runs along Dean Street. Photographs contained in the record established that at this intersection the public walk has disintegrated and appears to be comprised of crumbled pavement or gravel. The portion of the driveway to the east of the walk, leading onto the property, appears to be similarly deteriorated and composed of a similar texture, while the portion of the driveway to the west of the walk, leading to the street, appears to be somewhat intact. On the northerly and southerly edges of the driveway, the sidewalk surface resumes, thus forming a lip or slightly raised portion of pavement.

On May 27, 1986, at approximately 10 p.m., plaintiff went out to jog. Plaintiff ran in a northerly direction on the sidewalk on the east side of Dean Street. As plaintiff entered the portion of the public walk which crossed defendants’ driveway at 329 Dean Street, he noticed the pavement was not cement. Plaintiff proceeded across the drive, and his left toe caught the lip of the walk where the pavement resumed. Plaintiff fell and sustained serious injuries.

Plaintiff’s second amended complaint against the Tambones and BLI alleged that defendants had a duty to use the driveway and the public sidewalk which crossed it so as not to create unsafe conditions for pedestrians and to repair defects of which they had notice. Plaintiff further alleged that defendants negligently disregarded their duties in that their use of the sidewalk created an unsafe condition; that defendants had notice of the sidewalk’s defects and failed to maintain and repair the drive and the walk; that defendants failed to warn pedestrians of the dangerous and defective condition of the sidewalk; and defendants’ failure to maintain and repair the driveway constituted a violation of a Woodstock city ordinance. Lastly, plaintiff asserted that defendants’ negligence caused his injuries.

Defendants did not file an answer to plaintiff’s second amended complaint but moved for summary judgment, claiming that no genuine issue of material fact existed and that they were entitled to summary judgment as a matter of law. In support of their motion, defendants stated that plaintiff’s second amended complaint failed to allege any duty or negligent act recognized in Illinois. Additionally, defendants provided plaintiff’s deposition.

In opposition to defendants’ motion, plaintiff offered his affidavit and the photographs of the driveway and sidewalk upon which he relied in his deposition.

Both parties submitted lengthy written argument, and the court heard oral argument on the motion for summary judgment on January 26, 1989. In ruling in defendants’ favor, the trial court observed that plaintiff had failed to present evidence that vehicles using defendants’ driveway had broken up the sidewalk.

Plaintiff timely filed a motion for reconsideration which included affidavits of two neighborhood residents. The residents attested to the condition of the sidewalk in front of 329 Dean Street, the large number of vehicles using the driveway and the constant deterioration of the sidewalk over time. One affiant offered his opinion that the traffic on defendants’ driveway caused the damage to the sidewalk.

Defendants objected to plaintiff’s affidavits, contending that the the affidavits were inadequate and contained conclusions. Defendant submitted portions of defendant John R. Tambone’s deposition.

In a written opinion filed June 27, 1989, the trial court stated:

“The Plaintiff is correct that the court had indicated to the Plaintiff at the time of the entry of the Order granting Summary Judgment that if the Plaintiff could establish facts or reasonable inferences from facts that the Defendants had caused the defect to the sidewalk-driveway causing the Plaintiffs fall that the Court would reconsider it’s [sic] ruling. The Courts [sic] analysis of the affidavits presented on behalf of the Plaintiff is that the affidavits go to the condition of the sidewalk-driveway only, but do not state any fact or reasonable inferences that establish how the defect was created.”

The trial court concluded that its earlier entry of summary judgment for defendants was correct; thus, it denied plaintiff’s motion for reconsideration. Plaintiff’s timely appeal ensued.

The rules and procedures governing motions for summary judgment are clear and well established in the State of Illinois. Most important among the considerations of the trial court facing such a motion is the fact that summary judgment is an extraordinary remedy and will be granted only when the movant’s right to judgment is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The trial court’s task is to determine whether issues of fact which are material to the dispute exist. (See Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112.) If the trial court determines that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then the granting of a summary judgment is proper. Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).

The procedure for considering a motion for summary judgment further requires that the trial court construe the record before it most strictly against the movant; conversely, the court must view the record in the light most favorable to the nonmovant. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055.) In determining whether a genuine issue of material fact exists, the nonmovant may rely on reasonable inferences drawn from the materials considered on the motion. Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 627.

Lastly, but no less importantly, the nonmovant is not required to prove his case in opposition to the summary judgment but must simply establish sufficient facts which could arguably support judgment in his favor. Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487.

The issue presented on appeal is whether the record establishes that defendants owe a duty of care, statutory or otherwise, to plaintiff with regard to the maintenance, repair and/or use of the public sidewalk which abuts their property. Plaintiff contends that certain ordinances of the City of Woodstock obligate defendants to maintain and repair their driveway where it crosses the public sidewalk; plaintiff further asserts that defendants' violation of these ordinances subjects defendants to liability for injuries which result from such failures. Apart from the ordinance’s requirements, plaintiff claims that defendants’ duty to maintain their driveway and the public sidewalk where it intersects the driveway arises from the fact that defendants have appropriated the public walk for their own use. Lastly, plaintiff states that defendants have a duty to refrain from creating unsafe conditions on the public sidewalk where it abuts their property. Plaintiff claims that defendants’ use of the sidewalk as a portion of their driveway has caused its current defective condition, thus imposing upon defendants a duty to repair the defects or warn pedestrians of their existence. We will address plaintiff’s theories seriatum.

At the outset of our analysis, we note that our consideration of defendants’ statutory duty to maintain and repair the sidewalk, if any such duty exists, is seriously hampered by the fact that neither party has provided us with an actual copy of the municipal ordinance in question. We cannot take judicial notice pursuant to section 8—1002 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8— 1002) of a document such as a city ordinance unless the parties have supplied us with it or we have ready access to it. (See People v. Davis (1989), 180 Ill. App. 3d 749, 753.) Nevertheless, for purposes of review of the instant cause only, we note that plaintiff’s brief purports to state the pertinent portions of the City of Woodstock ordinance as follows:

“6.1A.3 DRIVEWAYS
B. Construction: No driveway shall be so constructed or graded as to leave a step, sharp depression or other obstruction in the sidewalk. The grade shall be as nearly as possible the same as that of the adjoining sidewalk. The surface finish of any driveway where the same crosses the sidewalk shall not be constructed of such materials as to render it slippery and hazardous for pedestrians. Driveways across sidewalks shall be constructed of concrete or of such materials as may be approved by the City council. (1963 Code, Section 27.21)
C. Repairs: Every person maintaining a driveway shall keep it in good repair where it crosses the sidewalk, and free from obstruction and openings. (1963 Code, Section 27.21)”

As defendants have not responded with a contrary version of the ordinance, we will consider that plaintiff accurately portrays it.

Even assuming that the ordinance as quoted by plaintiff is accurate, we conclude that it does not expressly impose liability on property owners such as defendants for violations of its terms. Although the purported ordinance specifies the manner in which a driveway is to be constructed and expressly prohibits depressions, obstructions and slippery or hazardous surfaces, nowhere does it explicitly impose liability upon the owner or occupier of such a driveway for injuries to pedestrians which might result from such depressions, obstructions, or slippery and hazardous conditions. Likewise, although the purported ordinance requires persons maintaining a driveway to keep such driveway “in good repair where it crosses the sidewalk,” the ordinance lacks express language imposing liability on such persons for the failure to repair. In Shufelt v. City of Rockford (1980), 89 Ill. App. 3d 717, we considered a city ordinance which mandated the repair and maintenance of public sidewalks by abutting property owners or occupiers. There, the ordinance provided, “[s]uch abutting owner or occupier is liable for injuries sustained by lack of repair.” (89 Ill. App. 3d at 718.) Suffice it to say, the purported city ordinance at issue here lacks explicit language and cannot be interpreted to impose liability on property owners or occupiers for violations of its requirements.

In the alternative, plaintiff contends that defendants have a duty to maintain and repair the public walk since the city ordinance constitutes a public safety measure and plaintiff is included within the class of persons the ordinance was designed to protect. Plaintiff relies upon Duncavage v. Allen (1986), 147 Ill. App. 3d 88, in which the appellate court concluded that certain building code ordinances imposed a duty upon the defendant building owner to maintain the common areas of his building in a safe condition. In Duncavage, the appellate court held that the building owner’s many violations of the building code proximately caused the death of plaintiff’s decedent because the code’s purpose was to insure the public safety; further, the court held that the code was intended to benefit people like plaintiff’s decedent, who was a tenant in the building. (Duncavage, 147 Ill. App. 3d at 99-100.) Plaintiff also relies on Gula v. Gawel (1966), 71 Ill. App. 2d 174, 182, for the proposition that the violation of a city ordinance constitutes prima facie evidence of negligence if the ordinance is intended to protect humans or property. In Gula, the appellate court considered certain building code provisions concerning the construction and maintenance of stairways and concluded that a plaintiff has a cause of action against a property owner for injuries caused by violations of such ordinance provisions if plaintiff is a person intended to be protected by the ordinance. 71 Ill. App. 2d at 182.

The problem for the instant plaintiff in relying on this theory is the difference between building safety codes such as the court considered in Duncavage and Gula and municipal regulatory ordinances like the one at issue here. Municipalities are obligated to maintain public ways within their limits, and this obligation is nondelegable. (See Horrell v. City of Chicago (1986), 145 Ill. App. 3d 428, 432; see also Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 19.) While it is readily apparent that the building code provisions at issue in Duncavage and Gula share a common purpose to ensure public safety, we believe it is equally apparent that the instant ordinance’s purpose is to provide a benefit for the municipality. We conclude, for purposes of this appeal only, that the purported ordinance is not a public safety measure and does not impose liability on defendant for injuries resulting from their alleged violations of its terms.

We now consider whether defendants had a common-law duty to maintain and repair the public sidewalk at its intersection with their driveway. Plaintiff contends defendants owed him such a duty because they assumed a special use of the sidewalk; plaintiff further asserts defendants are liable for his injuries resulting from his fall on the broken sidewalk because their use of the sidewalk as a portion of their driveway caused its defective condition.

A plaintiff’s mere allegation of a landowner’s duty is inadequate to support a negligence cause of action; plaintiff must allege sufficient facts from which the law will raise a duty. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 82.) “Whether the facts presented in a particular situation establish a relationship between two individuals such that the law will impose a duty upon one for the other’s benefit is an issue of law to be determined by the court.” (Ziemba v. Mierzwa (1990), 193 Ill. App. 3d 662, 665.) The trial court in the instant matter found that plaintiff had failed to allege sufficient facts to support a determination defendants owed plaintiff a duty under either of the theories set out above.

The general principle that a landowner or occupier has no duty to maintain or repair public sidewalks abutting on his property gives way when he appropriates the use of the sidewalk for a business purpose. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 432; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 352.) In Dodd, the plaintiff fell in a hole in the sidewalk outside defendant’s drugstore. The appellate court noted that, although a business occupier is obliged to provide a reasonably safe means of access to his business, he has no general duty to insure the safety of pedestrians on a municipally owned sidewalk outside his business, even if the sidewalk provides access. (Dodd, 178 Ill. App. 3d at 432.) The court noted, “[h]owever, if the occupier of the premises appropriates the sidewalk for its own use, it then has a duty to insure that the sidewalk is safe.” 178 Ill. App. 3d at 432.

The Dodd court held that in order for the duty to apply, the landowner or occupier had to take an affirmative step to appropriate the public walkway, such as blocking the walk, parking on it, using it to display goods, or otherwise preventing the public from using the walkway in its ordinary manner. (178 Ill. App. 3d at 433.) The court concluded, however, that no duty applied because the sidewalk where the plaintiff fell was not the only access to plaintiff’s store; indeed, defendant’s business entrance was not even located along the sidewalk. Further, the public was free to use the sidewalk to get anywhere. (178 Ill. App. 3d at 433.) Thus, the appellate court affirmed the judgment for the defendant.

We agree with plaintiff’s contention that defendants’ use of their property at 329 Dean Street constitutes a business use rather than a residential use, as none of the defendants live there but have leased the property to tenants for approximately 20 years. Nonetheless, the record does not establish that defendants affirmatively appropriated or assumed a special use of the sidewalk. There is no evidence to suggest that defendants prevented the general public from using the sidewalk in any way, or that defendants obstructed the sidewalk, parked on the sidewalk or conducted business thereon. (See Dodd, 178 Ill. App. 3d at 433; see also Repinski, 85 Ill. App. 3d at 24.) We conclude that defendants did not appropriate the public sidewalk for a special use or business purpose. In the absence of such a conclusion, the law will not impose a duty on defendants to maintain and repair the public sidewalk.

We now consider plaintiff’s alternative contention that defendants’ use of the public sidewalk as a portion of its driveway caused the defective condition of the sidewalk. The general rule of a landowner’s or occupier’s nonliability for repairs to a public sidewalk does not relieve the owner or occupier from his responsibility to pedestrians for “personal injuries sustained as a proximate result of the dangerous condition of a sidewalk adjoining his property when the dangerous condition was directly occasioned by him.” (9 Ill. L. & Prac. Cities, Villages & Other Municipal Corporations §536, at 127-28 (1954).) The appellate court has recognized an abutting owner’s duty to exercise ordinary care not to create an unsafe condition which would interfere with the customary and regular use of the walk. Schuman v. Pekin House Restaurant & Lounge (1981), 102 Ill. App. 3d 532, 534.

Plaintiff relies primarily on an early Federal decision, Barker v. Kroger Grocery & Baking Co. (7th Cir. 1939), 107 F.2d 530. In Barker, the defendant’s store driveway crossed the public sidewalk, and its delivery trucks drove over the ends of the sidewalk, breaking and cracking the cement “thereby causing the driveway and its approaches on the sidewalk to be in a rough, broken and unsafe condition.” (Barker, 107 F.2d at 531.) The plaintiff fell at this location and sustained injuries. The jury returned a verdict for the plaintiff, and the court of appeals affirmed the judgment on the verdict, stating:

“It may further be said that [defendant] owed no duty to [plaintiff] to keep the sidewalk in repair, for the repair of public streets and sidewalks is peculiarly within the province of the city authorities. However, [defendant] owed [plaintiff] the negative duty not to negligently use the sidewalk here in question in such [a] manner as to cause [plaintiff] injury to which she did not materially contribute.” (Barker, 107 F.2d at 532.)

The court further opined that, if the defendant had created the defective condition in the sidewalk, the jury was entitled to consider whether the defendant was negligent in allowing the defective condition to continue. (107 F.2d at 532.) Lastly, in answer to the defendant’s argument that it had succeeded to the use of the defective sidewalk caused by the negligence of its predecessor, the court stated that the burden was on the defendant to refrain from using the already defective sidewalk in such a way as to make it'more defective; further, the court noted that there was evidence that the sidewalk had deteriorated during the defendant’s tenancy. 107 F.2d at 532-33.

Defendants contend that Barker does not support plaintiff’s cause of action because the instant plaintiff has failed to provide evidence establishing that defendants used the driveway and sidewalk at 329 Dean Street and that such use resulted in the defective condition of the sidewalk. Defendants further contend that Barker cannot be interpreted to impose a liability upon nonresident landowners for the repair of defective conditions when they do not use the driveway or have any knowledge of its condition. Defendants rely in large part upon Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, in which the plaintiff tripped in a hole in the sidewalk which intersected with the defendant’s driveway. The defendant obtained a jury verdict, and the appellate court affirmed, holding that the defendant had no duty to the plaintiff. Defendants contend that, pursuant to Repinski, so long as a landowner’s use of a public sidewalk is not unreasonable and is consistent with the sidewalk’s public purpose, the landowner is absolved from any liability to pedestrians for the defective condition of the walk. We believe that Repinski does not so hold. Our review of the Repinski decision discloses that the court’s holding is based on three factors: (1) the general rule that landowners or occupiers have no duty to maintain or repair public sidewalks abutting their property; (2) the defendant had not assumed a special use of the sidewalk but had merely exercised its right to make reasonable use of the sidewalk for access to its property; and (3) there was no evidence that the defendant had actively created the hole in the sidewalk, save for mere speculation concerning the gradual deterioration of the pavement. (Repinski, 85 Ill. App. 3d at 21-24.) It is significant that in both Repinski and Barker the question of whether the defendant-owner or occupier caused or contributed to the defective condition of the public sidewalk went to the jury.

Here, we must consider whether the instant plaintiff has presented sufficient evidence on this same question to survive defendant’s motion for summary judgment. We believe that plaintiff has done so. The record contains several photographs which reveal that the condition of the sidewalk changes abruptly and significantly where it intersects with defendants’ driveway. One photograph shows the sidewalk continuing and intersecting with a neighboring driveway without any similar deterioration. The affidavits submitted by plaintiff attest to the high volume of traffic on defendants’ driveway and to the constant deterioration of the driveway and sidewalk. Although plaintiff improperly offered one affiant’s conclusion that the traffic on defendants’ driveway caused the damage to the driveway and sidewalk, this inference can clearly be drawn from the facts set out above. Further, there is sufficient evidence in the record to support an inference that the persons using the sidewalk and driveway at 329 Dean Street did so with defendants’ knowledge and permission, and defendants have failed to allege any facts to rebut this inference. Thus, the facts and the record on review, when viewed in the light most favorable to plaintiff, support the conclusion that defendants owed a duty to plaintiff to refrain from causing a defective condition in the sidewalk and to repair such defects; further, defendants’ liability to plaintiff for his injuries resulting from damage occasioned by defendants may similarly be inferred.

A party opposing a motion for summary judgment need not conclusively prove his case, but rather he must establish sufficient facts which would arguably entitle him to judgment. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487.) We conclude that plaintiff has alleged sufficient evidence in support of his negligence complaint to survive defendants’ motion for summary judgment; the trial court granted such motion in error.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE GEIGER JUSTICE DUNN,

text:
    THE PEOPLE OF THE STATE ILLINOIS, Plaintiff-Appellee, v. DAVID CRANE, Defendant-Appellant.
    Second District
    No. 2—87—0957
    Opinion filed March 21, 1990.
    Modified on denial of rehearing May 11, 1990.

      DUNN, J., dissenting.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, David Allen Crane, appeals from his two jury trial convictions of murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9—1.) He challenges the court’s refusal to suppress his statements, the jury instructions, and the adequacy of his representation by counsel. Although we reverse based upon an error in jury instructions, we address the suppression issue, as it is relevant to the defendant’s possible retrial.

On January 7, 1987, Detectives Roger Costello and Larry Schultz traveled to and interviewed the defendant, who was being held on a traffic charge. During that interview, the defendant related the following. The victim, Robert Gahan, gave the hitchhiking defendant a ride and offered to smoke marijuana with him. After the two parked and smoked the marijuana, a struggle ensued between them. The victim fell to the ground after the defendant struck him repeatedly with numchucks.

The defendant further related that he then drove the victim’s car to visit a friend, Brian Carlson, thinking that the victim was dead. After telling his story to Carlson, and at Carlson’s suggestion, the defendant drove back to the body with plans to destroy the evidence by burning the body. The defendant poured gasoline on the body and ignited it. Several days later the defendant first heard that the victim had been alive when he was set on fire. Upon hearing that news, the defendant said he “just freaked out and started to cry.”

The defendant’s first argument on appeal is that the trial court erroneously declined to suppress his statement to the detectives. The following additional evidence from the suppression hearing is relevant to this first issue on appeal.

Detectives Costello and Schultz testified that at approximately 8:30 a.m. they began interviewing the defendant. They had no written waiver form; Detective Costello read the defendant his Miranda rights from a waiver card. Costello paused after each individual warning to ask the defendant if he understood. The defendant did not respond to any of the five individual warnings.

Further, according to the officers, after the defendant was read all the warnings, Costello asked if he understood all the warnings just read to him. After a short silence, the defendant nodded affirmatively. Thereafter, Costello asked if the defendant wished to talk with the detectives; he nodded. Detective Schultz informed the defendant that he had been the subject of an extensive investigation and explained that the officers wanted to obtain the defendant’s version of the events. The defendant stared and gave no other response. Detective Schultz then showed the defendant a photograph of the victim’s charred body. The defendant shoved the picture aside and stated that he had not murdered anyone. Detective Schultz related some of the information they had about the event to the defendant. The defendant asked to read some of the written statements the officers had collected. Although the officers showed the defendant the length of the statements and the signatures on the statements, they would not allow him to read them.

The officers’ version of the defendant’s interview concluded as follows: After 5 to 10 minutes of silence from the defendant, Detective Costello told him that, if he were not going to talk to the officers, he could say so and save them all time. The defendant looked down approximately 30 seconds, said that he had been unable to sleep “ever since this happened,” then gave the statement at issue. Only after the defendant had given his statement and the officers inquired about taking a written statement did the defendant request a lawyer.

According to the defendant’s testimony at the suppression hearing, while Detective Costello was reading his rights to him, Detective Schultz pulled out a photograph of the victim’s charred body and held it in front of the defendant’s face, saying “you burned him alive, you murdered him.” The defendant was horrified and shocked; he stated that he had not murdered anyone and that he wanted a lawyer. Detective Schultz then pulled out some written statements and stated that “Carlson and Walters said you did.” According to the defendant, he refused to talk to the officers and sat silently for at least half an hour; during that time the officers related what they had learned in their investigation.

The defendant estimated that about an hour after the interview began he began shaking. Thereafter he began speaking with the officers because he was intimidated by Detective Schultz. He renewed his request for a lawyer when the officers asked him to make a written statement, hoping to stop the interrogation. The defendant denied that he nodded his head to show that he understood the Miranda warnings. According to the defendant, he understood that he had the right to demand an attorney, but he was unsure he would be provided one.

On appeal, the defendant argues that the court should have ordered suppression of his statement. The defendant first challenges the believability of the officers’ testimony, particularly that the defendant nodded, acknowledging understanding of his rights. The defendant emphasizes that the officers brought no written waiver form to the interview and that he was silent throughout the initial reading of his Miranda rights. The defendant also maintains that his silence corroborates his assertion that he repeatedly told authorities that he had nothing to say and that he wished to be left alone. The defendant claims that by showing him the photograph he was subjected to “psychological interrogation specifically designed to overcome [his] silence.” Secondly, the defendant urges that by his period of complete silence he was invoking his right to remain silent, which the officers improperly failed to honor.

To determine whether a statement was voluntary, a court must look to the totality of the relevant circumstances. (People v. Cortez (1986), 143 Ill. App. 3d 1024.) Where the trial court held an evidentiary hearing on a suppression matter, we will not disturb the court’s finding unless it is manifestly erroneous. See People v. Davis (1986), 142 Ill. App. 3d 630.

We find no reason to disturb the trial court’s finding that the defendant’s statement was voluntary. There is nothing inherently unbelievable in the officers’ version of the relevant events. Here, there is no dispute that the questioning was at a reasonable hour, in a basically neutral setting, of moderate length, and free of physical abuse and promises from the police. (See Cortez, 143 Ill. App. 3d at 1026.) According to the police, the defendant was read his Miranda rights and nodded his understanding shortly before he began his statement. (See People v. Brown (1986), 146 Ill. App. 3d 101.) Furthermore, the officers could properly show the defendant evidentiary photographs without acting coercively. (See People v. Gorham (1978), 66 Ill. App. 3d 320.) The trial court judge, who observed the witnesses, could properly choose to rely upon the officers’ testimony.

Based upon the State’s evidence, the trial court could properly find, in this case, that the defendant neither cut off questioning nor interrupted questioning to request an attorney. (Cf. Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) It could further find that despite the officers’ invitation to end questioning if the defendant would not speak, the defendant chose voluntarily to make his statement. The trial court’s decision on suppression was not against the manifest weight of the evidence.

The defendant’s next argument on appeal is that he was denied a fair trial by the court’s refusal to instruct the jury on mistake of fact. The refused instruction was as follows: “A person’s mistake as to a matter of fact is a defense if it negates the existence of the mental state which is an element of the offense charged.”

The defendant was charged with two counts of murder in that he, without legal justification, “beat and burned” and thereby caused the death of the victim. Count I charged that the defendant acted “with intent to kill or do great bodily harm” (see Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)); count II charged that the defendant acted “knowing [his] acts created a strong probability of death or great bodily harm” (see Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2)).

The defendant asserts that each charge actually refers to two independent acts: a beating and a burning separated by time. According to the defendant, to each independent act he presented a defense. Regarding the beating, the defendant maintained that based on the victim’s attack, the defendant’s action was taken in self-defense. Regarding the burning, the defendant maintained that he was not guilty of murder because when he took the relevant actions, he believed, perhaps erroneously, that the victim was already dead.

The jury was instructed on self-defense. However, the court refused the defendant’s mistake-of-fact instruction. On appeal, the defendant argues that the court’s failure to instruct on mistake of fact was reversible error. In his argument, the defendant relies upon People v. Ellison (1984), 126 Ill. App. 3d 985.

In Ellison, the defendant asserted a mistake-of-fact defense to burglary, claiming that he had believed he merely was helping his friend move some property. This court found that the defendant had presented evidence which supported his affirmative-defense theory that he lacked the mental state requisite to the offense. Consequently we reversed the conviction, based upon the court’s refusal to present the defendant’s mistake-of-fact instruction to the jury. We consider Ellison controlling and find no reason to disavow it as the State urges.

In the instant case, as in Ellison, the defendant presented evidence to raise the affirmative defense of mistake of fact; based on that presentation and Ellison, he was entitled to receive his simple, brief, impartial, nonargumentative, non-Illinois Pattern Jury Instruction on that defense. (Ellison, 126 Ill. App. 3d at 997-98.) Furthermore, we find here, as we found in Ellison, that the court’s failure to instruct was not harmless error. Without the instruction at issue, the jury was not made specifically aware that defendant’s mistake of fact could have negated his guilt. See Ellison, 126 Ill. App. 3d at 998.

In finding reversible error, we first specifically observe that, contrary to the State’s assertion, the defendant’s mistake-of-fact theory had evidentiary support. Both Detective Costello and Detective Schultz testified that, in their questioning of him, the defendant specifically and repeatedly referred to his belief that the victim was dead prior to the burning incident. Also, the State’s expert testimony on cause of death in no way dictated a conclusion that the victim died only after the defendant’s acts of burning. The State’s expert Powers testified that he could not conclusively say that the victim was dead at the time of the burning. The State’s expert Blum testified that the victim could possibly have died from a cause other than the burning: for example, from positional asphyxia or the type of head wounds he had suffered. Blum further testified that a layperson seeing an unconscious human body with injuries like the victim’s might reasonably assume that the victim was dead. The defendant’s closing argument focused on the defendant’s theory that the victim died before burning.

We also specifically observe that mistake of fact was a viable defense in this case, despite the decision in People v. Deacon (1985), 130 Ill. App. 3d 280, upon which the State relies. It is clear, as observed by the Deacon court, that murder does not require an intent to cause death. Under the murder statute and the Deacon decision, a defendant whose actions led to the victim’s death may be guilty of murder either if he had knowledge that his actions threatened death or great bodily harm or if he acted with indifference to whether the victim lived or died. (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(2); Deacon, 130 Ill. App. 3d at 287-88.) However, we find that even those lesser mental states can be negated by the instant theory of mistake of fact. One cannot have knowledge that his actions threatened death or great bodily harm to a corpse; similarly, one cannot be indifferent to whether a corpse lives or dies. Consequently, if the jury believed the evidence that the defendant thought the victim was dead when the defendant committed his acts of burning, it could not find the requisite mental state for murder in connection with those acts.

We find that if the jury believed both the defendant’s self-defense theory and his mistake-of-fact theory, there would be no basis to convict him of murder for “beating and burning” the victim. The instant instruction was critical to the defendant’s case.

As we find that the defendant’s conviction must be reversed because of the instant improper instruction, we need not address the defendant’s remaining arguments. In remanding the case for further proceedings we observe that, given the sufficiency of proof presented at the trial, we find no double jeopardy barrier to retrial. See People v. Taylor (1979), 76 Ill. 2d 289.

Based on the foregoing, we reverse the judgment of the circuit court of Winnebago County and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

WOODWARD, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent because I do not believe the affirmative defense of mistake of fact was available to defendant in light of the evidence presented at trial. Therefore, the trial judge’s refusal to give the instruction offered by defendant concerning this defense was not error.

Defendant and the State are entitled to appropriate instructions presenting their theories of the case to the jury if the evidence supports those theories. (People v. Janik (1989), 127 Ill. 2d 390, 398; People v. Lyda (1989), 190 Ill. App. 3d 540, 544.) Unless the evidence is so clear and convincing that it enables the trial court to determine as a matter of law that there is no affirmative defense, the question of whether a defendant should be relieved of criminal liability because of an affirmative defense must be left to the jury, which must be properly instructed as to the applicable law. Lyda, 190 Ill. App. 3d at 545.

An individual’s ignorance or mistake as to a factual matter is an affirmative defense to a criminal charge “if it negatives the existence of the mental state which the statute prescribes with respect to an element of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 4—8.) The statute defining first degree murder states in relevant part as follows:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than second degree murder.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a).)

Both counts of the indictment alleged that defendant beat and burned Robert Gahan, thereby causing his death. Count I alleged that he did so with the intent to kill or cause great bodily harm; count II alleged that he did so knowing his acts created a strong probability of death or great bodily harm.

Considering the evidence presented in this case, even if defendant did mistakenly believe Gahan was dead when • defendant burned him, this would not negate the requisite mental state for murder. According to the evidence, defendant admitted to several people that he beat Gahan with numchucks, martial arts instruments that are considered deadly weapons when used as bludgeons. (People v. Van (1985), 136 Ill. App. 3d 382, 384.) Defendant further admitted that he obtained a can of gasoline from a friend and returned to the scene of the beating shortly thereafter, whereupon he poured gasoline over the victim and burned him. The State presented unrebutted evidence that defendant beat Gahan with a deadly weapon and then burned the body, causing his death. In the opinion of the State’s experts, Gahan was alive though unconscious at the time defendant began to burn his body, although these experts did not rule out the possibility Gahan was dead at this time as a result of the beating.

At the very least, according to the evidence, the beating rendered Gahan unconscious and therefore was a contributing factor in his death because it rendered him helpless when defendant burned him. Regardless of whether defendant had a mistaken belief that Gahan was dead before the burning, defendant clearly had the requisite mental state for murder at the time of the beating, one of the events leading to Gahan’s death. There is no doubt that defendant, in beating Gahan with a potentially deadly weapon, knew that his actions created a strong probability of death or serious bodily injury to Gahan. Since defendant’s purported factual mistake could not have negated the existence of the requisite mental state for murder, he was not entitled to rely upon the affirmative defense of mistake of fact. The trial court properly refused to present to the jury the proposed instruction concerning this defense offered by defendant. The case upon which the majority relies, People v. Ellison (1984), 126 Ill. App. 3d 985, is clearly distinguishable because in that case defendant’s purported mistaken belief that he was merely helping a friend move some property would have negated the requisite mental state for burglary.

The trial court gave proper instructions presenting defendant’s theories of the case to the jury. The jury was properly instructed concerning self-defense and the requisite intent for murder. Thus, the jury was aware that if defendant reasonably believed the beating he administered to Gahan was necessary to prevent imminent death or great bodily harm to himself, the beating was a lawfully justified act. The jury was also aware that if defendant believed Gahan was dead at the time he burned Gahan’s body, he could not have had the requisite intent for murder with regard to this act. Since the trial court correctly concluded as a matter of law that the defense of mistake of fact was not available to defendant and properly refused to give any instruction concerning this defense, I dissent from the majority’s conclusion to the contrary. In so doing, I express no view about the issues raised by defendant, which were not considered by the majority.