author: JUSTICE LEWIS

text:
    LOGAN N. HUTSON, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Freeman United Coal Mining Company, Appellee and Cross-Appellant).
    Fifth District (Industrial Commission Division)
    No. 5 — 90—0842WC
    Opinion filed January 16, 1992.

      Harold B. Gulley, Jr., of Raleigh, for appellant.
    Kenneth F. Werts and Nancy R. Kuhnke, both of Craig & Craig, of Mt. Vernon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The claimant, Logan N. Hutson, appeals from the judgment of the circuit court confirming the decision of the Illinois Industrial Commission (hereafter referred to as the Commission), which modified the decision of the arbitrator. The Commission found that the claimant is permanently disabled to the extent of 60% under section 8(d)(2) of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)), as provided by section 7 of the Illinois Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.42), and affirmed as to all other issues. The arbitrator had found the claimant permanently disabled to the extent of 20% of the body as a whole. The employer, Freeman United Coal Mining Company, cross-appeals.

The claimant raises a single issue for review: whether the Commission erred in determining the nature and extent of his disability by failing to apply the proper burden of proof. The employer presents five issues for review: (1) whether the Commission erred in determining the nature and extent of claimant’s alleged disability; (2) whether the Commission erred in determining that the claimant’s last day of exposure was February 4, 1981; (3) whether the Commission erred in determining that an occupational disease exists which arose out of and in the course of the claimant’s employment by the respondent employer; (4) whether the Commission erred in determining that the claimant’s condition of ill-being is causally related to an occupational disease; and (5) whether the Commission erred in determining that the claimant suffered disablement from an occupational disease within two years from the date of his alleged last exposure.

At the hearing before the arbitrator, conducted on May 10, 1988, the claimant testified in his own behalf that he had worked as a coal miner for approximately 27 years, having last worked on February 4, 1981. He was 63 years old at the time of the hearing. He began working as a coal miner in 1948 cleaning tracks underground. Thereafter he worked underground as a timberman and coal shooter. Between 1954 and 1962 he did not work as a coal miner but worked “with automatic vending machines,” did “general labor work,” and “worked on the railroad as extra gang line, new steel, new track.” He also worked for the State of Illinois for about a year and a half during that time. In 1962 he resumed work as an underground coal miner, working as a “general laborer, shooter, mine examiner and face foreman” until February of 1979, when he was laid off. In April of 1979 he resumed work as an underground coal miner, employed this time by the respondent and working as a “brattice man. I did general labor work and examining, a little bit of everything.” He worked for the respondent until February 4, 1981.

He stated that he had never worked a day in the coal mines when he was not exposed to dust. He stopped working at the age of 55 because he was “sick.” On February 4, 1981, the claimant did not work, he said, but called in sick and, because he was having trouble breathing, saw his doctor, Dr. Scott Zimmerman. He testified that he had been having breathing problems for “at least” 10 years prior to that time. Asked, “Did your breathing problems affect your ability to do your job?” the claimant answered, “It could have, yes.” He stated that he had smoked about a package of cigarettes a day for approximately 30 years but no longer smoked, having stopped smoking sometime between 1975 and 1978.

On cross-examination he testified that after he graduated from high school, he was in the United States Navy for 42 months during World War II. Since he last worked in February of 1981, he said, he has not applied for any kind of employment, stating, “I’m not able to work.” He worked as a mine examiner, he testified, from about 1965 until 1975 and as a face foreman from 1975 until 1979.

On redirect examination the claimant testified that a brattice man “fills stopping, either tin, wood or block or to the direction of the ventilation of the air in your mine.” As part of that job he was required to haul concrete blocks weighing approximately 90 pounds.

Dr. Zimmerman, a physician in general practice, testified on behalf of the claimant by evidence deposition taken on March 25, 1987. Dr. Zimmerman was uncertain about the date on which he had first seen the claimant. The records available to him indicated a possible initial visit of February 3, 1981. He sees the claimant about once every two to three months and had seen him the week before the deposition. In February of 1981 and October of 1983 the witness conducted pulmonary function studies. On the test given in February of 1981 the claimant did “very poorly,” the interpretation of which indicated “a combined obstructive and restrictive ventilatory defect.” The results of the test given in October of 1983 were “a little bit better.” Asked whether in his opinion the claimant has pneumoconiosis, Dr. Zimmerman answered as follows:

“Well, I feel that he does. He obviously has chronic lung disease and there is, based on his pulmonary function test, a restrictive component to it and based on his chest X-ray reports there is some evidence of interstitial fibrosis. I believe that these are some of the requirements before you can define coal miners[’] pneumoconiosis and these are present in his lung disease. Now, there is an obstructive component, which I don’t know if it’s all due to working in the mines or primarily due to smoking, but I’m sure both factors combined have led to the way he is now.”

With respect to any impairment suffered by the claimant as a result of his coal workers’ pneumoconiosis, the witness stated:

“He has a long history since I’ve known him of shortness of breath with exertion and occasionally when I see him he has problems with shortness of breath at rest. In addition he has frequent respiratory infections and this is something which — I remember when I first met Logan he was still working in the mines and he came in with these symptoms and he was getting worse at that time. He retired shortly thereafter and since that time he has improved somewhat. So I feel that working in the mines has contributed to this problem.”

The witness testified that in his opinion, given his impairment, the claimant would not be able to be gainfully employed as a coal miner. He described coal workers’ pneumoconiosis as “mostly irreversible.”

On cross-examination Dr. Zimmerman expressed the view that “anything over probably 20” pack years of smoking would be considered “a heavy exposure.” He stated that pulmonary function tests are “definitely” effort-dependent. Concerning improvement with the passage of time in the results of claimant’s pulmonary function tests, the witness observed that “[mjaybe they would get better in a certain degree as any reversible component reversed itself, but I would not expect them to achieve normality due to the significant amount of lung disease which he already has.” The witness expressed the view that he did not think the claimant has significant coronary artery disease.

On redirect examination he testified that chronic respiratory disease was the claimant’s most significant problem. He stated that the root cause of claimant’s pulmonary distress was the inhalation of coal dust and cigarette smoke in combination. The witness was unable, however, to “quantify” what the cigarette smoking might have caused. He expressed the belief that coal workers’ pneumoconiosis is “definitely” a factor contributing to the claimant’s respiratory distress. Exposure to coal dust would, in the opinion of the witness, be injurious to the claimant.

Dr. Parviz B. Sanjabi, board-eligible in internal medicine and pulmonary medicine, testified on behalf of the claimant by evidence deposition taken on May 8, 1987. The witness had examined the claimant on April 17, 1986, at which time his main complaints were shortness of breath and reduction of exercise tolerance. “And when I obtained the history of this problem from him,” the witness said, “he has stated that he is not able to walk more than a couple of blocks on level ground. And when he climbs up one flight of stairs, he gets short of breath and he cannot continue.” He had a history “for quite a few years” of coughing and producing sputum, particularly in the morning. The claimant gave a work history of working underground in the coal mines for 25 years and a 40-pack-year history of smoking, which he had discontinued in 1977. The witness described 25 years of working as an underground coal miner as a “significant exposure.” He considered 40 years of cigarette smoking a “significant history” as well. X rays showed that “there were findings compatible with what I considered coal workers’] pneumoconiosis of simple variety.” He described simple coal workers’ pneumoconiosis as existing

“when the X-ray findings indicates [sic] deposits of coal dust in the parenchyma, in the tissue of the lung, but there is not body reaction in way of presence of fibrosis or scar tissue formation in addition to the coal deposit. So when scar formation is not present, we call that simple coal workers^] pneumoconiosis.”

The results of a pulmonary function test that was performed at the time of examination demonstrated “severe obstructive pattern.” Obstruction pattern occurs, the witness stated, when the flow of air through the airways is reduced because of narrowing and tightening of the airways. In the opinion of the witness, based upon the physical examination, laboratory values, and the X-ray finding, the claimant has coal workers’ pneumoconiosis. This condition was caused, in Dr. Sanjabi’s opinion, by “[w]orking in the coal mines.” The claimant suffers further, he said, from chronic bronchitis.

According to the results of the pulmonary function study, the claimant has an obstructive defect. Dr. Sanjabi testified that the inhalation of coal dust can cause an obstructive defect. Likewise, the inhalation of cigarette smoke can cause an obstructive defect. Dr. Sanjabi could not quantify the amount of the claimant’s impairment that was related to the inhalation of coal dust as opposed to the amount of his impairment that was related to the inhalation of cigarette smoke.

The witness described coal workers’ pneumoconiosis as a chronic, irreversible disease. Persons who have a diagnosis of coal workers’ pneumoconiosis should not be exposed to a very dusty environment. Continued inhalation of coal dust would, he said, aggravate the claimant’s preexisting condition. Asked whether the claimant is disabled from doing heavy manual labor as a result of his respiratory problems, the witness responded as follows:

“That would be a very difficult question to answer, Mr. Gulley, because the definition of heavy and the amount of work required with it is really not clear to me, and also the correlation of the limited pulmonary function test that we have here to the exact oxygen uptake and exercise tolerance is not quite clear here and it would be difficult to answer that question because of those.
However, folks who have an FEV1 of about 40 per cent or so usually will have a very limited exercise tolerance and they are impaired considerably. But in order to answer that question, one has to know exactly how much energy requirement we’re talking about and how often and for how long. To be able to answer that question, we need those informations which we don’t usually obtain in physical examination of this magnitude.”

Earlier he testified with respect to the results of the pulmonary function test administered to the claimant that “[h]is forced expiratory volume of one second measured 1.31 liter which was 41 percent of his predicted value.”

On cross-examination Dr. Sanjabi testified that smoking can cause a reduction in a person’s exercise tolerance and can result in shortness of breath. Pulmonary function tests are to some extent effort-dependent. He testified that the obstructive pattern is seen in both coal workers’ pneumoconiosis and bronchitis. There is, he reiterated, no way to determine from the results of the pulmonary function test whether reductions in pulmonary function shown by the results of the test are caused by smoking or by coal dust. The findings on the X ray taken of the claimant indicated mild, simple pneumoconiosis. Asked, “Would that finding of simple coal workers[’] pneumoconiosis and the changes you saw to indicate that, would those suggest that there would be any impairment as a result of those findings or those things that you saw on the X-ray?” Dr. Sanjabi responded, “The impairment seen with that level of X-ray findings are [sic] usually much less and limited.” Asked further, “So it would be a slight impairment?” Dr. Sanjabi answered “If any, yeah.” He stated that “physiologically it’s advisable for people who have as severe pulmonary function variation as this gentleman has not to be exposed to whatever irritates their airways.” Coal dust is a nonspecific airways irritant, and thus, it would be best for claimant not to be exposed to it but to work in an area where it is not dusty. He testified that “[i]n the type of coal workers[’] pneumoconiosis that we see especially in this part of the country, the restrictive condition would be very rare. So usually we see obstructive condition.”

Dr. Edward Campbell testified on behalf of the employer by evidence deposition taken on May 6, 1988. The witness is board-certified in internal medicine and is certified in the subspecialty of pulmonary disease. He examined the claimant in February of 1988. The claimant had told him, he said, that he had smoked approximately one pack of cigarettes daily for about 20 years but had stopped smoking in 1979. Chest X rays the witness had had taken were essentially normal; he found no evidence of abnormalities in the lung fields that would be suggestive either of congestive heart failure or pneumoconiosis. According to studies performed during the examination, the arterial blood gases were normal. The results of pulmonary-function tests, as interpreted by Dr. Campbell, indicated the presence of “a moderate and severely obstructive abnormality of ventilatory function” as well as a moderately reduced diffusing capacity. The results of a pulmonary-exercise test indicated to Dr. Campbell that the predominant factor limiting the claimant’s exercise capability was heart disease. This test also gave evidence of lung disease. Dr. Campbell diagnosed the claimant as having chronic bronchitis, a moderate obstructive abnormality of ventilatory function, coronary artery disease with angina pectoris, and a moderate to marked exercise limitation “with evidence suggesting that coronary artery disease and a cardiac cause was [sic] responsible” for this limitation. Dr. Campbell felt that, based upon the claimant’s history and exercise evaluation, he should be considered “totally and permanently disabled to such an extent that he would be unable to perform the regular coal mine work that he described to me or any other work requiring a similar effort.”

Dr. Campbell felt further that the major cause of claimant’s exercise limitation and disability was coronary artery disease with myocardial ischemia and angina pectoris. In the opinion of the witness, if claimant’s lung disease were present and his heart disease were absent, claimant’s exercise capability would be at least moderately restricted on account of his lung disease and he would probably be unable to perform “his last previous coal mine job as a concrete block layer.” With respect to the cause of the impairment of the claimant’s ventilatory function, the witness expressed the view that this abnormality “would be entirely consistent with chronic bronchitis and emphysema resulting from this man’s previous history of cigarette smoking.” Dr. Campbell found “no evidence of an abnormality in a pattern which would suggest that the abnormality was due to pneumoconiosis.” He stated that chronic bronchitis and emphysema are typically associated with an obstructive pattern of abnormalities, which pattern he observed in the claimant, whereas coal workers’ pneumoconiosis is typically associated with a quite different pattern of ventilatory abnormalities, which pattern he did not observe in the claimant. “On this basis,” he said, “I felt that it was possible to say within a reasonable degree of medical certainty that this abnormality observed in [the claimant] was due to chronic bronchitis and emphysema rather than to coal worker’s pneumoconiosis or other occupational lung disease.”

On cross-examination Dr. Campbell testified that the claimant has significant lung disease and that “anything more than a sedentary job would be impossible for him to perform in my opinion.” Viewing the claimant as a man as a whole, he said, his lung disease is a contributing factor to his overall disability. Dr. Campbell did not think that exposure to coal mine dust alone could cause chronic bronchitis of “this severity and persistence.” It could, however, in his opinion have been a causative factor in the development of claimant’s chronic bronchitis. i In his further opinion, however, exposure to coal mine dust could not j have been a causative factor in the development of his emphysema. | Claimant’s bronchitis and emphysema, in Dr. Campbell’s opinion, together have resulted in chronic airways obstruction. He cannot determine how much of the claimant’s chronic obstructive pulmonary disease is due to emphysema and how much of it is due to chronic bronchitis. He indicated that a person can have disabling lung disease despite a normal physical examination, a normal chest X ray, and normal arterial-blood-gas studies.

No additional evidence was presented on review. In setting forth its reasons for finding as it did, the Commission expressly assigned “the greatest weight” to the medical opinion of Dr. Sanjabi and “more weight” to the medical opinion of Dr. Zimmerman than to that of Dr. Campbell. The Commission noted that Dr. Sanjabi had recommended that the claimant avoid exposure to coal dust and that Dr. Zimmerman had opined that the claimant could not return to work as a coal miner. The Commission found further, citing E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206, that the claimant “failed to prove that as the result of an occupational disease he is unable to perform any other regular and continuous employment for which he is qualified.”

In claimant’s brief, with respect to the issue he raises for review, he contends that he is totally and permanently disabled. He maintains that the Commission applied an improper standard in determining the nature and extent of his disability, asserting that he made a prima facie showing he fell within the “odd-lot” category but the Commission erred in that it “never shifted the burden” to the employer to show the availability of some kind of regular and continuous employment which he is capable of performing.

The determination of the extent or permanency of the employee’s disability is a question of fact, and the Commission’s decision will not be set aside unless it is against the manifest weight of the evidence. (Esposito v. Industrial Comm’n (1989), 186 Ill. App. 3d 728, 542 N.E.2d 843.) The claimant has the burden of proving by a preponderance of the evidence the extent and permanency of his injury. (Esposito, 186 Ill. App. 3d 728, 542 N.E.2d 843.) Once the claimant has met this burden, then the respondent must show that some kind of competitive market work is regularly and continuously available to the claimant. (Esposito, 186 Ill. App. 3d 728, 542 N.E.2d 843.) The degree of the disability is dependent upon the extent to which the medical disability has impaired the employee’s earning capacity or ability to work. E.R. Moore Co., 71 Ill. 2d 353, 376 N.E.2d 206.

The standard by which permanent and total disability is judged is as follows:

“[A]n employee is totally and permanently disabled under the Act when ‘such employee is unable to make some contribution to the work force sufficient to justify the payment of wages.’ [Citations.] However, a claimant is not required to demonstrate total incapacity or helplessness before a permanent total disability award may be granted. [Citations.] A person is totally disabled when he cannot perform any services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. [Citations.] Conversely, if an employee is qualified for and capable of obtaining gainful employment without seriously endangering his health or life, he is not entitled to total and permanent disability compensation.” (Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 176, 427 N.E.2d 103, 107.)

In determining whether the employee is capable of performing any useful services, the Commission must consider the age, training, education, and skills of the employee, the extent of the injury, and the nature of the employment. (Caradco Window & Door v. Industrial Comm’n (1981), 86 Ill. 2d 92, 427 N.E.2d 81.) As was stated in Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 546-47, 419 N.E.2d 1159, 1163:

“[I]f the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market (2 A. Larson, Workmen’s Compensation sec. 57.51, at 10-164.24 (1980)), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant (2 A. Larson, Workmen’s Compensation sec. 57.61, at 10-164.97 (1980)).”

It is the province of the Commission to weigh the evidence and to draw reasonable inferences therefrom in the first instance, and a reviewing court will not overturn its findings simply because a different inference could be drawn. (Niles Police Department v. Industrial Comm’n (1981), 83 Ill. 2d 528, 416 N.E.2d 243.) The resolution of conflicting medical testimony is a question of fact for the Commission; its determination will be upheld unless contrary to the manifest weight of the evidence. Ceco Corp. v. Industrial Comm’n (1983), 95 Ill. 2d 278, 447 N.E.2d 842.

The Commission expressly found that in the opinion of Dr. Sanjabi, to whose medical opinion it assigned the greatest weight, the claimant was “considerably impaired.” Dr. Sanjabi did not indicate, however, that the claimant was totally disabled, testifying instead that, because he did not have enough information, it would be “very difficult” to answer the question whether the claimant is disabled from doing heavy manual labor as a result of his respiratory problems. The claimant, a high school graduate, testified that he had been employed in various positions for an eight-year period after he had worked as a coal miner for a number of years and before he returned to work as a coal miner. These positions were described, if at all, very generally. Thus, the record does not show that the claimant is either a person altogether incapacitated for work or a person who is so handicapped that he will not be employed regularly in any well-known branch of the labor market. Since the claimant did not make out a prima facie case that he fell in the odd-lot category, the burden remained upon him to show that, considering his present condition, in light of his age, experience, training, and education, he is permanently and totally disabled as set forth above. (See Valley Mould & Iron Co., 84 Ill. 2d 538, 419 N.E.2d 1159.) This burden may be met by a showing of diligent but unsuccessful attempts to find work or by proof that because of the above-mentioned qualities he is unfit to perform any but the most menial tasks for which no stable market exists. (Valley Mould & Iron Co., 84 Ill. 2d 538, 419 N.E.2d 1159.) The claimant made neither showing. It was not against the manifest weight of the evidence for the Commission to have concluded, as it did, that the claimant failed to prove that as the result of an occupational disease he is unable to perform any other regular and continuous employment for which he is qualified.

With regard to the employer’s cross-appeal, to the extent that the employer specifically addresses each of the five issues it presents for review, it contends essentially that the Commission’s findings are against the manifest weight of the evidence. The employer maintains that the claimant failed to establish that he is disabled as a result of a work-related disease; that the Commission’s finding that the claimant was last exposed on February 4, 1981, to an occupational disease arising out of and in the course of his employment is against the manifest weight of the evidence; that the finding that the claimant is disabled as a result of exposure to an occupational disease arising out of and in the course of his employment is against the manifest weight of the evidence; that the Commission’s decision that the claimant’s disability is causally related to an occupational disease, namely coal workers’ pneumoconiosis, is against the manifest weight of the evidence; and that the claimant’s contention that he sustained disablement within two years of the last day of the last exposure to the hazards of an occupational disease is not borne out by the evidence.

The resolution of conflicting medical testimony falls within the purview of the Commission, and its findings will not be reversed unless contrary to the manifest weight of the evidence. (Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 399 N.E.2d 606.) When the Commission is faced with the question of which of two conflicting views of medical testimony should be adopted, it is for the Commission to ascertain the testimony that is to be accepted. (International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908.) It is within the prerogative of the Commission to decide disputed issues of fact involving diverse medical opinions, including those of causal connection. International Harvester, 93 Ill. 2d 59, 442 N.E.2d 908.

It would serve no useful purpose to reiterate the facts stated above. As we have said, the Commission expressly assigned “the greatest weight” to the medical opinion of Dr. Sanjabi and “more weight” to the medical opinion of Dr. Zimmerman than to that of Dr. Campbell. The testimony of Drs. Sanjabi and Zimmerman, together with that of the claimant, supports the findings of the Commission disputed by the employer. These findings were not contrary to the manifest weight of the evidence and, thus, may not be disturbed.

The judgment of the circuit court confirming the decision of the Commission is accordingly affirmed.

Affirmed.

McCULLOUGH, RJ., and WOODWARD, STOUDER, and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fifth District
    No. 5 — 90—0814
    Opinion filed January 29, 1992.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, and Conger & Elliott, P.C., of Carmi (William S. Hanley, Peggy J. Ryan, and Ivan A. Elliott, Jr., of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (James E. Weging, Special Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.

      Fyie & Hawkins, of Fairfield, and Stratton, Dobbs, Nardulli & Lestikow, of Springfield (Jay H. Fyie and James Lestikow, of counsel), for appellee Wayne-White Counties Electric Cooperative, Inc.
    Randall Rings, of Association of Illinois Electric Cooperatives, of Springfield, for amicus curiae Association of Illinois Electric Cooperatives.
   JUSTICE HOWERTON

delivered the opinion of the court:

The Electric Supplier Act (Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 401 et seq.) was enacted July 2, 1965, to deal with territorial and customer service disputes between public utilities and electric cooperatives. The Act encourages electric suppliers to enter into service-area agreements delineating exclusive service areas between themselves. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 406.) This case requires us to interpret the service-area agreement between Central Illinois Public Service Company (CIPS) and Wayne-White Counties Electric Cooperative, Inc. (Wayne-White), and to resolve the dispute between them as to which of them has the right to serve Mobil Oil Exploration and Producing North America, Inc. (Mobil), previously Superior Oil Company, in the New Harmony Field in White County.

The New Harmony Field is an oil and gas field divided by Illinois Route 14. Prior to July 2, 1965, the date of the Electric Supplier Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 401 et seq.), both CIPS and Wayne-White provided electrical service to Mobil in the New Harmony Field. CIPS served Mobil at locations south of Route 14 under a 1964 contract that stated that CIPS would furnish Mobil “all electricity required.” Wayne-White served Mobil at locations north of Route 14 and one point south of Route 14. Wayne-White served other customers in the New Harmony Field; CIPS did not.

In 1968, CIPS and Wayne-White entered into a service-area agreement pursuant to section 6 of the Electric Supplier Act. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 406.) This agreement placed the New Harmony Field within the exclusive service territory of Wayne-White, but consistent with section 5 of the Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 405), it permitted CIPS to continue serving Mobil in the New Harmony Field south of Route 14.

In 1984, Mobil chose to expand its operations and obtain electrical service from only one source. In 1986 Mobil changed its electrical service from Wayne-White to CIPS. CIPS has since furnished electricity to all Mobil locations in the New Harmony Field, including those Mobil locations north of Route 14 that were previously served by Wayne-White.

Wayne-White filed a complaint with the Illinois Commerce Commission claiming that it had the right to serve Mobil in the New Harmony Field north of Route 14. Relying on the service-area agreement, the Commission ruled that CIPS was entitled to serve only those areas of the New Harmony Field that it served prior to July 2, 1965, i.e., locations south of Route 14. The circuit court affirmed, and CIPS appealed. We affirm.

An order of the Illinois Commerce Commission (Commission) will not be set aside unless it is against the manifest weight of the evidence. Rural Electric Convenience Cooperative Co. v. Illinois Commerce Comm’n (1979), 75 Ill. 2d 142, 387 N.E.2d 670.

The Commission correctly determined that CIPS could continue serving Mobil at locations south of Route 14. The question before us, however, is whether CIPS has the right to serve Mobil at locations north of Route 14 that were previously served by Wayne-White. This issue turns on whether the 1964 requirements agreement between CIPS and Mobil is an exception to paragraph 1(b) of the service-area agreement between CIPS and Wayne-White.

The 1964 agreement between CIPS and Mobil states in part:

“For and during the period of not less than five years or the life of the project, whichever is longer, beginning when [CIPS] begins to supply electricity hereunder, such period to begin about December 16, 1964, [CIPS] agrees to furnish [Mobil] and [Mobil] agrees to take from [CIPS] all electric power required by Mobil in the operation of [Mobil’s] oil producing facilities with connection to [CIPS] line in the center of section 35, T4S, R10E, 3rd P.M., and with metering located in SW 1/4, Section 33, T4S, R14W, of 2nd P.M., southeast of Crossville, White County, Illinois.” (Emphasis added.)

The 1968 service-area agreement, whereby the New Harmony Field was placed in the exclusive service territory of Wayne-White, provides:

“1. The parties [CIPS and Wayne-White] hereto covenant and agree that each shall continue to be entitled to (a) furnish service to customers at locations which each was serving on July 2, 1965, (b) furnish service to customers or premises which it had agreed to serve under contracts in existence on July 2, 1965 ***.” (Emphasis added.)

CIPS asserts that the Illinois Commerce Commission considered only the “customers at locations” exception and failed to consider the “contracts” exception to the agreement. It claims that the 1964 contract with Mobil is a contract within the “contracts” exception of paragraph 1(b) of the 1968 service-area agreement because CIPS had agreed to supply Mobil “all electric power required.” We disagree.

We find that the 1964 agreement between CIPS and Mobil does not fall within the exception of paragraph 1(b) of the service-area agreement and does not give CIPS the right to serve Mobil at locations previously served by Wayne-White. Paragraphs 1(a) and 1(b) were meant to apply to two different situations. Paragraph 1(a) refers to customers being served at locations prior to 1965, and 1(b) refers to contracts to serve customers in the future, or contracts to serve premises in the future.

The 1964 agreement between CIPS and Mobil was not meant to encompass Mobil’s expansion; it pertains only to the amount of electricity supplied to Mobil at locations enumerated in the contract. The 1964 agreement specifies the form of electricity as well as the amount of electricity to be supplied by CIPS. It also appears that before CIPS service was expanded north of Route 14, CIPS and Mobil had entered another agreement in 1985 and that the expansion was not done entirely pursuant to the 1964 agreement. The fact that Wayne-White also was serving Mobil in the New Harmony Field further substantiates our conclusion.

Furthermore, following CIPS’ rationale would permit a customer to choose its electric supplier even though service from that chosen supplier would infringe on another supplier’s service territory. Such a result cannot be permitted as it would be against the purpose and policy of the Electric Supplier Act of avoiding duplication of facilities and minimizing disputes (Ill. Rev. Stat. 1989, ch. 1112/3, par. 402) and would render service-area agreements meaningless. See Central Illinois Public Service Co. v. Illinois Commerce Comm’n (1990), 202 Ill. App. 3d 567, 560 N.E.2d 363.

We find that the order of the Commission is not against the manifest weight of the evidence and affirm.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD R. WREN, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0441
    Opinion filed January 16, 1992.

      Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Philip B. Alfeld, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Ronald R. Wren, was indicted in Madison County cause No. 90 — CF—150 for two counts of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2) and in cause No. 90 — CF—203 for two counts of aggravated unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3.1). On April 9, 1990, defendant appeared with counsel, Madison County Assistant Public Defender William Mudge, and entered a negotiated plea of guilty to the two armed robbery counts. Pursuant to the terms of the plea negotiation, defendant was sentenced to two concurrent 15-year terms of imprisonment on the charges and cause No. 90 — CF—203 was dismissed.

The record on appeal contains defendant’s pro se motion to reduce sentence, dated April 25, 1990, defendant’s pro se motion to withdraw guilty plea and vacate sentence, filed May 2, 1990, and his pro se petition for post-conviction relief and supporting affidavit, filed May 24, 1990. On May 3, 1990, Mudge, as counsel for defendant, filed a motion to withdraw plea of guilty and vacate judgment, asserting that “attorney for defendant is uncertain whether or not defendant wishes to pursue a motion to withdraw his guilty plea” and requesting that independent counsel be appointed “to represent defendant and ascertain defendant’s position on this motion.” On June 13, 1990, the circuit court entered an order appointing special defender Stephanie Robbins to represent defendant on “all pending matters” in a hearing set for July 11, 1990.

At the hearing, Madison County Assistant State’s Attorney Robert Troné moved to dismiss defendant’s post-conviction petition, asserting that defendant had not exhausted all other remedies. Robbins argued that defendant’s petition was appropriate under section 122 — 1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1) and further stated:

“[Defendant] has instructed me to withdraw his two motions to vacate his plea. He doesn’t want to withdraw his plea. That is, he doesn’t want to withdraw his plea, but he seems to feel that some post-conviction relief is appropriate because there was something of a constitutional nature that caused him to enter his plea in the first place. Now I have told him that Mr. Troné might well waive this thing, in which case we would probably go back to square one.”

The following colloquy then occurred:

“THE COURT: Wait a minute. He does not wish to withdraw his plea of guilty?
ROBBINS: That’s what he told me.
* * *
THE COURT: Hold it one minute. You do or do not want to withdraw your plea?
DEFENDANT: I do not wish to withdraw my plea. If I withdraw my plea, they can give me more time, and that is not the point I am trying to make. I am trying to get in comparison with four years, not receive more time.
* * *
Your Honor, April the 5th Mr. Mudge came to the County Jail. He told me, if you and [co-defendant] Felita [Palmer] don’t take this [negotiated plea bargain of] 15 years, they are ready to go to trial April the 9th. That’s the date I received the 15 years, April 9th. He came back on Friday. [‘]What’s your decision?[’] [I said, ‘] Alright, as long as Miss Palmer is getting 15, I will accept the 15.[’] Alright now, it has been brought to my attention by me [sic] not speaking of on the 9th that I probably have waived some of these rights, but like I said, I didn’t know she got four years until I was in the penitentiary.
* * *
TRONE: Your Honor, *** there was a big difference between the participation of these particular individuals in these events. There is not a disparity of sentencing taking into consideration this individual’s prior criminal record; taking into consideration that he was a very active participant in the commission of this offense; that Felita Palmer was a person who never entered the particular premises. There was never a showing of any active participation on her part other than being outside the particular premises. So what I am saying is if this gentleman wants a new trial, I am ready and I will let him vacate his plea.
DEFENDANT: That is not what I am asking for.”

After additional discussion and argument, the following occurred:

“THE COURT: In the *** Post-Conviction Petition, paragraph 9 states the Petitioner was coerced into pleading guilty ***. Wherefore, Petitioner prays *** that this honorable Court vacate the judgment and grant other further relief as deemed appropriate and just according to law. I am not sure if you’re asking to withdraw your plea or what you’re asking for.
* * *
ROBBINS: I think he’s really asking for a cut on the sentence.
THE COURT: Are you asking to reduce your sentence?
DEFENDANT: Yes.
THE COURT: Because this other person did not receive the same sentence?
DEFENDANT: Yes, that’s what I’m asking.
* * *
ROBBINS: I think [defendant’s] position is that when normally the Court is confronted by this situation, it has to determine whether or not to vacate the plea. That’s all the Court is ever asked to determine normally in these situations. [Defendant] doesn’t appear to be saying he wants this Court to vacate his plea. He is saying he wants the Court to consider these factors as they pertain to the sentence he received and, therefore, to reduce his sentence in light of these various factors that he’s brought out, including disparity of sentence and including his own criminal record, having only a conviction when he was prior to seventeen.
DEFENDANT: Right.
ROBBINS: I think that's his position. Am I understanding you correctly?
DEFENDANT: Yes. ***
THE COURT: Why is Mr. Mudge’s testimony needed in this?
* * *
ROBBINS: Well, [defendant] tells me he doesn’t think it’s needed in light of what he’s asking for here. *** And what we are asking is that the Court exercise its discretion in this matter by considering these factors that he’s brought out in his petition to reduce the sentence here, not to vacate the plea or not to permit him to withdraw his plea.
TRONE: The State would object to any reduction of sentence in view of the prior record and in view of the severity of the particular offense.
* * *
THE COURT: Alright, the motion to reduce sentence or any of the matters prayed for in the papers filed by the Defendant is denied.”

On appeal, defendant contends that it was error for the circuit court to dismiss his post-conviction petition without an evidentiary hearing where the petition stated sufficient allegations to establish a substantial showing of a constitutional violation. Defendant additionally contends that he did not receive effective assistance of post-conviction counsel where the record does not show compliance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) and where counsel failed to raise the issue of whether defendant had been denied credit for the original day he spent in custody on this matter.

Before considering the merits of defendant’s appeal, it is necessary to address the State’s contention that defendant’s post-conviction petition is not properly before this court. Under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.), the only requirements to institute a proceeding are imprisonment in the penitentiary and filing within 10 years “after rendition of final judgment.” (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1; see also People v. Thomas (1970), 45 Ill. 2d 68, 72-73, 256 N.E.2d 794, 797.) In the case at bar, defendant entered a negotiated plea of guilty and was sentenced on April 9, 1990, and filed his petition for post-conviction relief on May 24, 1990. Thus, where the final judgment in a criminal case is the sentence (see People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284), defendant filed his petition after the rendition of final judgment in his case.

The State argues that the pendency of defendant’s motion to reduce sentence and motions to withdraw guilty plea and vacate judgment rendered the sentencing order nonfinal and thus deprived the trial court of jurisdiction to hear defendant’s post-conviction petition. However, the Act provides a separate remedy, the availability of which is not contingent upon exhaustion of any other remedy. (People v. Howard (1981), 94 Ill. App. 3d 797, 799, 419 N.E.2d 702, 704, quoting People v. Rose (1969), 43 Ill. 2d 273, 279, 253 N.E.2d 456, 460.) Therefore, regardless of the status of defendant’s other motions, this court had the authority to entertain defendant’s post-conviction petition. We may thus properly proceed to address defendant’s contentions on appeal from the circuit court’s dismissal of his petition.

Defendant’s post-conviction petition alleged that he had been denied the effective assistance of trial counsel because said counsel: had a conflict of interest due to the representation of codefendant Felita Palmer by the public defender’s office; had failed to investigate the criminal history of Palmer; had represented to defendant that he and Palmer would both receive 15-year sentences, when, in fact, Palmer received only a four-year sentence; had represented to defendant that the sanctions of the Habitual Criminal Act could be used against defendant when, in fact, defendant was not eligible for those enhanced sanctions; and had represented that defendant’s only options were to accept the negotiated plea or to go to trial on April 9, 1990, when defendant could also have pled guilty without a negotiated plea. To merit an evidentiary hearing under the Act, a petition must make a substantial showing of a constitutional violation. (Howard, 94 Ill. App. 3d at 800-01, 419 N.E.2d at 705; see also People v. Dixon (1987), 160 Ill. App. 3d 65, 67, 513 N.E.2d 134, 136.) “In assessing the sufficiency of the allegations, if the allegations and supporting documents were true and would establish a constitutional violation, the trial court must hold a hearing to determine the actual facts.” People v. Dillard (1990), 204 Ill. App. 3d 7, 9, 561 N.E.2d 1219, 1220.

In the case at bar, the factual allegations contained in defendant’s post-conviction petition and supporting affidavit, when taken as true, establish a violation of defendant’s constitutional right to counsel which merited an evidentiary hearing. Defendant’s petition alleged that he was “coerced” into pleading guilty as a result of the misrepresentations made by his counsel. In a similar case, People v. Owsley (1978), 66 Ill. App. 3d 234, 383 N.E.2d 271, the reviewing court held that the trial court erred in dismissing defendant’s post-conviction petition without a hearing where it contained an allegation that her trial counsel, in conferring with her on guilty plea negotiations, had made misrepresentations which, if they misled her, rendered her guilty plea involuntary and unknowing.

In People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, our supreme court affirmed the judgment of the appellate court which set aside the defendant’s guilty pleas based upon his post-conviction petition alleging that he was denied effective assistance of counsel in that his attorney misrepresented to him the effect of his guilty pleas upon his immigrant status. In Correa, our court stated that “[i]f the defendant’s pleas were made in reasonable reliance upon the advice or representation of his attorney, which advice or representation demonstrated incompetence, then it can be said that the defendant’s pleas were not voluntary; that is, there was not a knowing and intelligent waiver of the fundamental rights which a plea of guilty entails.” 108 Ill. 2d at 549, 485 N.E.2d at 310.

Therefore, here, if defendant relied on erroneous advice and representations of counsel in making his decision to enter into the negotiated plea, then his plea of guilty was not intelligently and knowingly made and therefore was not voluntary. (See Correa, 108 Ill. 2d at 553, 485 N.E.2d at 312.) Thus, an evidentiary hearing would have been appropriate to determine whether defendant’s plea should be set aside as involuntary due to his reliance on counsel’s misstatements.

However, defendant made it abundantly clear that he did not wish to have his guilty plea vacated. Not only did he instruct his post-conviction counsel to withdraw his motions to vacate his plea, defendant also repeatedly stated that he did not want his guilty plea withdrawn.

Thus, there was no necessity for an evidentiary hearing to determine whether defendant’s plea should be withdrawn. In fact, the record reflects that defendant specifically waived his right to an evidentiary hearing on this matter, where, although trial counsel Mudge was apparently available to testify, defendant stated, through post-conviction counsel, that “he doesn’t think it’s needed in light of what he’s asking for here.” We are therefore disinclined to say that the circuit court erred in dismissing defendant’s petition without an evidentiary hearing, where defendant voluntarily waived the opportunity to have such a hearing conducted.

Defendant’s petition also alleged that his trial counsel was ineffective for operating under a conflict of interest and for failing to investigate his codefendant’s criminal history. However, we need not consider whether these claims merited an evidentiary hearing where the remedy for any constitutional violation they present, a withdrawal of his guilty plea, was repudiated by defendant. Defendant cannot claim error from the denial of access to a remedy that he knowingly abandoned.

At the hearing, defendant asserted that the only relief he was interested in receiving was a reduction in sentence based upon an alleged disparity between the terms of imprisonment imposed upon him and his codefendant, Felita Palmer. While disparity of sentence is cognizable under the Act, one who seeks relief through such proceedings must allege facts, which, if proven, indicate that his constitutional rights were violated in that regard. (People v. Adams (1987), 164 Ill. App. 3d 742, 745, 518 N.E.2d 266, 268.) “The mere disparity of sentences does not, in and of itself, require attention by a reviewing court.” 164 Ill. App. 3d at 745, 518 N.E.2d at 268; see also People v. Logan (1976), 39 Ill. App. 3d 656, 657-58, 350 N.E.2d 40, 41, cert. denied (1977), 430 U.S. 956, 51 L. Ed. 2d 807, 97 S. Ct. 1603 (trial court’s imposition of sentence upon defendant without considering sentences received by codefendants or with disparity between codefendants does not constitute substantial constitutional error within meaning of the Post-Conviction Hearing Act).

Although defendant’s petition alleged that the difference in sentences between him and his codefendant “is so grave that a misjustice of law has occurred, thus violating [sic] defendant of his constitutional rights,” the affidavits and evidence of record do not indicate a disparity in sentencing of constitutional dimension. Indeed, defendant has not challenged this determination on appeal herein nor by the filing of a direct appeal from the court’s denial of his motion to reduce sentence. Therefore, the circuit court did not err in dismissing defendant’s petition without an evidentiary hearing.

Defendant next asserts that he received ineffective assistance of post-conviction counsel because his appointed counsel, Ms. Robbins, failed to: amend his pro se petition; file a certificate of compliance pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)); or adequately consult with him regarding his allegations. We do not agree.

Supreme Court Rule 651(c) mandates that the record in a post-conviction proceeding contain a showing that the petitioner’s attorney consulted with him, examined the record of the trial proceedings and made any amendments to the pro se petition necessary for adequate presentation of the petitioner’s contentions. This requirement can be met by a certificate of compliance or can be established from the record itself. People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55; see also People v. Drew (1976), 36 Ill. App. 3d 807, 809, 345 N.E.2d 45, 47.

The record in the case at bar reveals that defendant’s post-conviction counsel had reviewed the record of proceedings and was familiar with the case apart from the contentions of defendant’s pro se petition. Counsel brought to the trial court’s attention defendant’s motion to reduce sentence, which the court had overlooked upon its own examination of the file.

Next, defendant contends that the record does not show consultation between counsel and defendant. However, according to Rule 651(c), the purpose of consultation is to determine what claims petitioner would make so that counsel can present them in proper legal form. (134 Ill. 2d R. 651(c).) Here, counsel took particular care to insure that she was accurately presenting defendant’s position to the court by asking defendant whether she was stating it correctly. We agree with the State that counsel’s comments should not be viewed as an indication of ill-preparedness or a lack of consultation, but rather as evidence of her desire to sufficiently raise all the issues defendant wanted. In fact, defendant stated his agreement with counsel’s presentation of his claims at several times during the hearing, and he made it clear that he was only interested in receiving relief based on his allegation of sentence disparity.

Further, failure to amend a pro se petition does not establish ineffective representation unless there is a showing that the petition could have been amended to state a case upon which relief could be granted. (People v. Alexander (1990), 197 Ill. App. 3d 571, 573, 554 N.E.2d 1078, 1079.) We have found that the sentence disparity issue did not merit an evidentiary hearing, and defendant has not shown how his petition could have been successfully amended to achieve the relief he requested. (See Alexander, 197 Ill. App. 3d at 573, 554 N.E.2d at 1079.) We therefore hold that counsel substantially complied with the requirements of Rule 651(c) and that defendant did not receive inadequate assistance on his post-conviction petition.

Finally, defendant contends that he is entitled to credit for the original day spent in custody in this matter and argues that counsel’s failure to raise this issue in post-conviction proceedings constitutes ineffective assistance. A sentencing credit issue of this type is not appropriately considered in an appeal from the dismissal of a post-conviction petition which did not raise the issue, but instead should be raised by filing a motion to amend mittimus in the trial court. However, “in the interests of an orderly administration of justice” (see People v. Scott (1969), 43 Ill. 2d 135, 143, 251 N.E.2d 190, 194), we will treat defendant’s request as a motion to amend mittimus and consider it because an amended mittimus may be issued at any time. People v. Miles (1983), 117 Ill. App. 3d 257, 259, 453 N.E.2d 68, 70.

Examination of the record herein reveals that although defendant was initially taken into custody on February 19, 1990, the mittimus reflects credit for time served in custody since February 20, 1990. We therefore remand this cause to the circuit court of Madison County for issuance of an amended mittimus reflecting credit for time served in custody since February 19, 1990.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed, and this cause is remanded to the circuit court for issuance of an amended mittimus.

Affirmed and remanded with directions.

WELCH and LEWIS, JJ., concur.


author: JUSTICE HOWERTON JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE A. BOURKE, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0368
    Opinion filed January 29, 1992.
    RARICK, J., specially concurring.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Kathryn Dobrinic, State’s Attorney, of Hillsboro, and Kenneth L. Kwiatt, of Northfield (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant was convicted of unlawful possession of a weapon by a felon. He asserts on appeal that his attorney was ineffective for failing to make a timely motion to suppress evidence. We affirm.

Defendant returned home after several hours of drinking. He went into his house, accused his wife of being with another man, beat her with his fists, a CB antenna, and a shotgun, and then went to sleep. His wife, leaving her two children behind, escaped out a window and ran to a neighbor, who took her to the police.

The police notified the sheriff that a woman had been beaten with a shotgun and that two children remained in the home. Armed with no warrant, the sheriff and some other officers went to the home looking for “a man with a gun and *** two small children.” When they arrived, defendant met them at the door and the sheriff arrested and handcuffed defendant on the porch and then took him inside, where the officers searched for the children and the shotgun. They found the two children and, after a brief search, found the shotgun leaning against the wall behind the bedroom door. Defendant then asked for a shirt and shoes and was allowed to go into the bedroom where the shotgun was found. Later that morning the sheriff’s investigator got defendant’s wife’s consent to conduct a second search of the house, which revealed a box of shotgun shells.

After trial had begun defendant moved to suppress the shotgun. The State argued in opposition that a motion to suppress was to be made before trial and, therefore, was untimely. (See Ill. Rev. Stat. 1989, ch. 38, par. 114 — 12(c) (a motion to suppress is to be made before trial unless the opportunity did not exist or the defendant was not aware of the grounds for making the motion).) Defendant asserted that because the signed consent form did not indicate when consent was given, he believed defendant’s wife consented before the first search and, therefore, did not know until after the trial started that there were two searches.

The circuit court, after hearing evidence on the motion, ruled that the motion was untimely. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 12(c).) No ruling was rendered on whether the shotgun should have otherwise been suppressed.

Defendant asserts that his attorney’s failure to move to suppress the shotgun before trial was ineffective assistance of counsel. We disagree. Counsel is constitutionally ineffective when his or her performance is deficient and “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) We believe that, under these facts, a reasonable attorney, with minimal investigation, would have filed a timely motion to suppress the shotgun before trial, and therefore, we find that counsel’s performance was deficient.

We next address whether but for counsel’s deficiency the outcome of the trial would have been different, i.e., if counsel would have filed a timely motion, would the court have granted it and, if so, would defendant have been convicted. Here, the police officers, having already arrested defendant and found the two children, went into defendant’s bedroom, a place they had no lawful right to be, and searched for and found the shotgun before defendant asked to go into his bedroom and get dressed. This was an unlawful search, for it was not conducted incident to arrest (People v. Hansen (1980), 90 Ill. App. 3d 407, 413 N.E.2d 103), it was not based on exigent circumstances (People v. Elders (1978), 63 Ill. App. 3d 554, 380 N.E.2d 10), and the shotgun was not found in plain view. (People v. Testa (1984), 125 Ill. App. 3d 1039, 466 N.E.2d 1126.) Therefore, we believe a timely motion would have been granted. Nevertheless, we believe defendant still would have been convicted. Defendant was charged with unlawful possession of a weapon. Defendant’s wife testified that defendant brought a shotgun into the house, and that defendant came home one night and beat her with it. Her testimony was uncontradicted and supported by photographs showing the injuries sustained from the beating. It is not necessary for the shotgun to have been admitted into evidence in order to uphold this conviction. (In re Ephriam (1978), 60 Ill. App. 3d 848, 377 N.E.2d 49; People v. Ortiz (1973), 18 Ill. App. 3d 431, 305 N.E.2d 418; People v. Herrera (1972), 6 Ill. App. 3d 898, 287 N.E.2d 87; People v. Halley (1971), 131 Ill. App. 2d 1070, 268 N.E.2d 449.) Regardless of whether the shotgun was suppressed, the testimony of defendant’s wife was sufficient to convict the defendant. The circuit court is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE RARICK,

specially concurring:

I concur with the majority’s conclusion that sufficient evidence existed without the shotgun to support defendant’s conviction. I believe, however, that the search of defendant’s bedroom was not unlawful and therefore the admission of the shotgun into evidence was proper.

First, I believe that the search was proper as a search incident to a lawful arrest. In Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, the Supreme Court held that it is reasonable and proper for officers to search an arrestee’s person and the immediate area from which the arrestee might gain possession of a weapon. (395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.) Although defendant was arrested outside and handcuffed, he was brought back inside the trailer so he could obtain a shirt and shoes. While there, he was free to move about the trailer, albeit with a deputy escorting him, and Sheriff Vazzi testified that the handcuffs did not completely immobilize the defendant. Under the circumstances, a protective sweep of the premises to locate and seize a weapon police knew to be present was not unreasonable. A protective sweep is cursory in nature, and the scope of such a search is strictly limited to that which is necessary to ensure the safety of the officers or others, (Maryland v. Buie (1990), 494 U.S. 325, 327, 108 L. Ed. 2d 276, 281, 110 S. Ct. 1093, 1094.) Reviewing the record, I believe that the initial search which produced the shotgun was a protective sweep which was limited to areas from which defendant could have obtained a weapon, not an exhaustive search.

Second, and more importantly, the presence of the children constituted exigent circumstances justifying a warrantless search. Under the exigent-circumstances exception, police may search a dwelling where the totality of the circumstances known to the officers at the time demonstrates the existence of an emergency necessitating immediate action. In the present case the officers knew there were children present, that at least one weapon was in the dwelling, and that defendant was intoxicated and had already bludgeoned his wife with the shotgun, forcing her to flee for her safety. In response to questioning by the court, Sheriff Vazzi testified that the officer’s purpose in entering the dwelling was to ensure the safety of the children. The record also demonstrates that the scope of the search was no greater than that necessitated by the exigency. Given the facts in this case, I believe there existed sufficient exigent circumstances to justify the warrantless search. United States v. Antwine (8th Cir. 1989), 873 F.2d 1144, 1147.


author: JUSTICE RARICK

text:
      In re MARRIAGE OF CHARLES DAVID QUINDRY, Petitioner and Counterrespondent, and RUTH ANN QUINDRY (LaBUWI), Respondent and Counterpetitioner.
    Fifth District
    No. 5 — 90—0798
    Opinion filed January 29, 1992.

      Mark D. Prince, of R. Courtney Hughes & Associates, of Carbondale, for appellant.
    Curtis G. Quindry, of Newton, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Mother, Ruth Ann Quindry (LaBuwi), appeals from the judgment of the circuit court of Franklin County awarding custody of the parties’ minor child to father, Charles David Quindry. We affirm.

Mother and father were married in Illinois in 1986. The parties’ only child, Elizabeth Ashley Quindry (Ashley), was born in September of 1986. In January of 1989, the parties separated while they were living in Arizona, and mother returned to Illinois with Ashley. By agreement, an order of temporary custody awarding custody to mother was entered in September of 1989. Father subsequently returned to the area and sought custody of Ashley. Both parties have remarried and are employed full time. After three days of testimony, the trial court awarded permanent custody to father subject to liberal visitation to mother. The court found both parties to be reasonably fit to have custody but concluded Ashley’s best interests would be better served by father. Mother argues on appeal the trial court’s award of custody to father is an abuse of discretion and against the manifest weight of the evidence. She also contends the trial court was prevented from considering fully the best interests of Ashley when certain evidence was not presented to the court on the advice of counsel.

The primary consideration in determining any custody dispute is the best interest and welfare of the child. (See, e.g., In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 625, 410 N.E.2d 1086, 1090.) The trial court, having had a superior opportunity to observe the witnesses, evaluate the evidence and consider the needs of the child, is in a better position than we are, sitting as a reviewing court, to determine just what that best interest is. (See, e.g., In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 625, 402 N.E.2d 831, 836, aff’d in part, vacated in part (1981), 87 Ill. 2d 174, 429 N.E.2d 465.) As a result, we will not overturn a determination of custody unless the trial court’s decision is contrary to the manifest weight of the evidence or exhibits a clear abuse of discretion. (See, e.g., In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 1039, 455 N.E.2d 887, 890; Piccirilli, 88 Ill. App. 3d at 626, 410 N.E.2d at 1090.) Neither is evident here. On the contrary, the record before us fully supports the award of custody of Ashley to father.

Ip its order, the trial court stated Ashley’s best interests would be better served by father because he has been more resourceful than mother in providing valuable experiences for Ashley and in making use of the day for her educational development. It is true mother is not an unfit parent. It is also true father originally agreed to the vesting of temporary custody of Ashley in mother. At the time of the parties’ separation, however, father was still living in Arizona and working fairly long hours. Mother, on the other hand, returned to Illinois to live with her parents, who could and did assist with the raising of Ashley. Even though mother had primary custody of Ashley during this period, she was not and has not been Ashley’s primary caretaker. Ashley spent the majority of her time, including three nights a week, with her grandparents in addition to every other weekend with father. Even when mother and father were together in Arizona, mother still did not take on the role of primary caretaker. Father and a downstairs neighbor in the apartment complex in which the parties lived took care of most of Ashley’s needs along with maintenance of the household. Admittedly, father now lives in a large metropolitan area where he can and does take Ashley to museums and cultural events. But, he has also spent much time with Ashley reading children’s books and watching children’s movies and the like. Mother, on the other hand, takes Ashley to events which mother wishes to attend whether or not such events may be in Ashley’s best interests. Contrary to mother’s assertion, she is not being penalized for living in a small town. The way mother chooses to spend her free time with Ashley, however, is a proper factor to be considered in weighing Ashley’s best interests.

Mother finds fault with the trial court’s conclusion she departed covertly with Ashley from the marital home in Arizona without telling father where his daughter could be reached. This conclusion, however, is supported by the record. The uncontroverted testimony of the downstairs neighbor was that mother intended to leave Arizona without telling her husband. The neighbor further testified she helped hide mother’s suitcases and drove mother and Ashley to the airport after father left for work. Even though mother returned home to her parents, father was not notified of Ashley’s whereabouts. Mother also failed to inform father of her new address and phone number when she and Ashley moved out of her parents’ house. Such actions reflect negatively upon mother’s willingness to facilitate and encourage a close and continuing relationship between father and Ashley and necessarily must be factored into the custody resolution.

Mother next takes issue with the trial court’s drawing adverse inferences from her failure to call her new husband as a witness on her behalf. Mother asserts on appeal his testimony would have been merely cumulative with the testimony of other witnesses, and as such, relying on Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 493, 342 N.E.2d 144, 150, any unfavorable inference presumption should not apply. We agree mother’s new husband could not testify to the long-term relationship between mother and Ashley, but his testimony would not have been merely cumulative. No one else but he could testify as to his willingness and ability to care for and provide a home for Ashley. Clearly, mother’s new husband plays an important part in Ashley’s life. While others testified they got along well, the trial court should have been given the opportunity to evaluate mother’s new husband on its own. We therefore find no error in the trial court drawing any adverse inferences from mother’s failure to call her new husband to appear on her behalf.

Mother’s final contention on appeal pertains to her failure upon the advice of counsel to present evidence to the trial court of father’s alleged past physical abuse of Ashley on six occasions in Arizona. Such abuse, according to mother’s affidavit filed in support of her petition for rehearing, consisted of throwing Ashley against the couch or bed. We initially note that generally evidence not presented at trial cannot be raised on appeal and that parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (See In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 52-54, 448 N.E.2d 545, 549-50.) While mother’s allegations are sufficiently serious to perhaps overcome such rules, any suggestion of physical abuse by father was contradicted at trial. The downstairs neighbor who regularly baby-sat Ashley never saw any signs of physical abuse on Ashley nor observed any occasion where father ever struck Ashley. She further testified she did not hear any type of abuse through the “paper thin” walls. We agree with father that it is preposterous to believe an experienced attorney would intentionally fail to present such potentially damaging evidence if the same were in fact true. We too believe all pertinent evidence relating to Ashley’s best interest was presented at trial and heard by the court. We therefore find the trial court properly awarded custody to father.

For the aforementioned reasons, we affirm the judgment of the circuit court of Franklin County.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


text:
    BOATMEN’S NATIONAL BANK OF BELLEVILLE, Guardian of the Estate of Leona Groboski, a Disabled Person, Plaintiff-Appellee, v. THOMAS MARTIN, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0308
    Opinion filed January 29, 1992.

      Richard M. Roessler and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant.
    Stephen M. Tillery, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff went to the emergency room on a Saturday morning complaining of a two-day-old headache, dizziness, numbness in her neck and head, fatigue, vomiting, and memory loss. Her blood pressure was elevated and her pulse rate was low. Defendant diagnosed her as having the flu and sent her home with instructions to call her own physician on Monday.

On Monday, plaintiff’s physician examined her, ordered a CT scan that showed bleeding in her brain, and referred her to a neurosurgeon who ordered an angiogram and scheduled surgery for the next day. The angiogram showed severe vasospasm, a narrowing of arteries caused by the presence of blood in the brain over a period of time. For that reason, surgery could no longer safely be performed. Plaintiff suffered a severe stroke resulting in irreversible brain damage. She sued defendant in Madison County for negligence, and a jury awarded her $5.1 million in damages.

Defendant appealed, claiming it was error to: (1) allow plaintiff’s witness, Dr. David Schreiber, to testify; (2) exclude, in limine, reference by defendant’s expert witness to medical statistics; and (3) allow plaintiff’s counsel to use poster-sized exhibits of jury instructions during closing argument. We affirm.

We first address defendant’s contention that the circuit court erred in allowing Dr. Schreiber, a neurologist, to testify. Defendant argues that Dr. Schreiber was an expert witness subject to disclosure pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). The circuit court ruled that Dr. Schreiber was a treating physician, and as such, was not required to be disclosed as an expert witness pursuant to Rule 220. (See Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525; Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894.) We agree.

Dr. Schreiber saw plaintiff four times: August 26, 1988, December 5, 1988, April 14, 1989, and September 19, 1989. During those visits, he examined plaintiff, took her history, ordered blood tests, prescribed medication, prescribed a diet, ordered an EKG, monitored her physical, occupational, and speech therapy, and helped her with medicare compliance. Physicians, such as Dr. Schreiber, who treat continuing medical problems resulting from initial alleged negligence are treating physicians. See Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894; Cochran v. Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 561 N.E.2d 229.

Defendant argues, however, that Dr. Schreiber was an expert witness and not a treating physician, because he expressed opinion on the standard of care. We disagree.

It is the initial relationship, not the content of testimony, that is examined to determine whether Dr. Schreiber is a treating physician or witness subject to disclosure under Rule 220. (Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 1093, 530 N.E.2d 1007, 1010.) In the case at bar, Dr. Schreiber first came into contact with plaintiff as her treating physician. The fact that he, in the course of that treatment, formed opinions as to the cause of her disability and the type of treatment she initially received does not transform him into a Rule 220 expert. See generally Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.

Defendant argues further that Dr. Schreiber should have been disclosed as a Rule 220 expert because plaintiff’s attorney supplied him with the medical records, reports and depositions of other physicians and asked him to render an opinion on the standard of care at trial.

Treating physicians are not subject to Rule 220 disclosure and may render opinions at trial because “those opinions are developed in the course of treating the patient and are completely apart from any litigation.” (Tzystuck, 124 Ill. 2d at 234, 529 N.E.2d at 528.) We are aware of no case that holds that supplying medical records, reports, and other physicians’ depositions to a treating physician and asking that treating physician to render an opinion at trial transforms the treating physician into a Rule 220 expert. Since barring the expert from testifying at trial is the penalty for failure to timely disclose an expert under Rule 220 (Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 525 N.E.2d 1172, appeal denied (1988), 122 Ill. 2d 576, 530 N.E.2d 247), we believe it would be most inequitable to establish such a rule and apply it retroactively to the plaintiff in this case. Therefore, we will not reverse the circuit court on this issue.

Further, the record, in the case at bar, makes clear that Dr. Schreiber’s opinion on the standard of care was formed from treatment, independent of the material supplied by plaintiff’s counsel:

“Q. [Defense counsel:] But, early last week for the very first time he said: In addition to that, Dr. Schreiber, would you be willing to look at some records I’ll bring you and express an opinion as to whether or not [defendant] deviated from the accepted medical standards, is that correct?
A. [Dr. Schneider:] Yes.
* * *
Q. And if I had deposed you the week before that in your office and if I had asked you were you going to give an opinion to Mr. Tillery in this case on the standard of care of [defendant], you would have said no, unless asked?
A. Right. I had an opinion. I was not asked to give that opinion. If you would have asked me my opinion on that date, I could have given you my opinion on that date.
Q. Without the records?
A. Without the records. With the information I had. The records just make me more sure, that’s all.”

Alternatively, defendant claims that even if Dr. Schreiber was not subject to Rule 220 disclosure, the circuit court erred in permitting Dr. Schreiber to testify because plaintiff’s counsel had failed to disclose him in answers to non-Rule 220 interrogatories.

When considering the appropriate sanction for nondisclosure of witnesses other than Rule 220 experts, broad discretion is granted the trial judge. (Frozen Food Express v. Modern Truck Lines, Inc. (1967), 79 Ill. App. 2d 84, 223 N.E.2d 275.) In making this determination, the court must weigh certain factors: (1) surprise to opposing counsel; (2) intentional or inadvertent concealment; (3) nature of the witness’ testimony, whether it is cumulative or new evidence supporting plaintiff’s theory; (4) timeliness of objection; (5) opportunity and access of opposing party to interview or depose the witness prior to trial; and (6) prejudice resulting to the opposing party. Western Electric Co. v. Bauer Brothers Construction Co. (1971), 131 Ill. App. 2d 1028, 268 N.E.2d 445.

The record leaves little doubt that defense counsel was “surprised” when plaintiff called Dr. Schreiber to the stand at the “11th hour,” an act that can hardly be deemed inadvertent, given defense counsel’s oral motion to update discovery before trial.

Though we do not approve of what happened here, our approval is not the test; neither is how we might have ruled had we been presented with these same circumstances. The sole issue for us is whether the circuit court abused its discretion, and we cannot say that it did, because the circuit court permitted defense counsel to interview Dr. Schreiber without time limitation before he took the stand, and Dr. Schreiber’s testimony was merely cumulative of other evidence. Therefore, we find no prejudice and believe the outcome of the trial was unaffected. (See Western Electric Co. v. Bauer Brothers Construction Co. (1971), 131 Ill. App. 2d 1028, 268 N.E.2d 445.) Accordingly, we find no abuse of discretion and affirm the circuit court on this issue.

We address next whether the circuit court erred in granting plaintiff’s motion in limine. Plaintiff sought to exclude:

“statistical data through studies, articles, by expert opinion, or through any other testimony or means relating to the mortality or morbidity of patients with subarachnoid hemorrhage, unless such data, studies, or testimony is specifically clinically correlated to a patient in the condition in which Leona Groboski presented to defendant, Martin, on April 5, 1988, including, but not limited to, the grade of the hemorrhage, the location of the hemorrhage and the treatment administered.”

The circuit court granted the motion.

Defendant argues that it was error to grant plaintiff’s motion because it excluded reference to medical literature supporting his expert’s opinions. We disagree.

It is well settled that Federal Rules of Evidence 703 and 705 (now adopted in Illinois) allow an expert to express an opinion based on facts or data not admissible in evidence as long as the facts or data are of the type reasonably relied upon by experts in the particular field (Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322) and are not excluded by another rule of law or competing policy interest, e.g., relevancy. (See City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 554 N.E.2d 1381.) In the case at bar, plaintiff sought, in the motion in limine, to ensure that the medical literature relied upon by defendant’s expert in arriving at his opinion “specifically clinically correlated to a patient in the condition in which Leona Groboski presented to defendant, Martin, on April 5, 1988, including, but not limited to, the grade of the hemorrhage, the location of the hemorrhage and the treatment administered.” The circuit court had discretion to require the expert to show that the medical literature he relied upon related to the plaintiff’s injury, i.e., that the facts or data used by the expert are of the type reasonably relied upon by experts in the particular field. (See, e.g., City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 554 N.E.2d 1381.) In its ruling, the court stated:

“I’m not forbidding [defendant] from offering these [sic] kind of statistical information if they can tie it up medically with the condition that the plaintiff had at that particular time, and then I think then, [sic] if [defendant] can tie that up, then I think it’s evidence that the jury ought to hear.”

Defendant did not show that the literature relied upon statistically correlated to a person with plaintiff’s condition; we, therefore, find no error.

Lastly, we address whether plaintiff’s use of poster-sized exhibits of selected jury instructions prejudiced defendant.

Nothing prohibits the use of poster-sized exhibits of jury instructions. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1107.) On the contrary, courts have held that “in closing argument, counsel for the parties are permitted to state their belief as to the anticipated instructions and develop their arguments in accordance with these instructions.” Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 854, 430 N.E.2d 377, 379.

Surveys of jurors have shown that jurors often have difficulty relating the case to the instructions — a difficulty best overcome by arguing the instructions during closing argument, and “enlarging a copy of the instructions on an overhead projector or posterboard.” (Green, A Jury Researcher Joins the Jury, 91 Case & Comment 28, 35 (1986).) Since jurors are to decide the case, and since there is empirical evidence that enlarging the instructions helps the jury fulfill its mission, it seems to us that refusing to allow the instructions to be enlarged so that they can be seen and read by the jury during closing argument and thereby be incorporated into the closing argument is a bad choice. There is no error in this procedure; to the contrary, it should be encouraged.

Defendant offers no evidence to suggest that the instructions were misstated or that plaintiff’s choice of which instructions to display misled the jury. Therefore, we find no error in allowing this technique of advocacy.

The judgment of the circuit court is affirmed.

Affirmed.

HARRISON and LEWIS, JJ., concur.