text:
    THE CITY OF EAST MOLINE, Petitioner, v. THE POLLUTION CONTROL BOARD, Respondents.
    Third District
    No. 3 — 88—0788
    Opinion filed August 31, 1989.
    Rehearing denied October 11, 1989.

      James J. DeNapoli and Roy M. Harsch, both of Gardner, Carton & Douglas, of Chicago (Daniel E O’Connell, of counsel), for petitioner.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE SCOTT

delivered the opinion of the court:

The City of East Moline (East Moline) appeals from a decision of the Illinois Pollution Control Board (Board) wherein the Board affirmed the Environmental Protection Agency’s (Agency’s) denial of East Moline’s application for a National Pollution Discharge Elimination System (NPDES) permit for the operation of East Moline’s public water supply treatment facility.

The underlying facts of this appeal are generally undisputed. On May 15, 1986, East Moline applied to the Agency for an NPDES permit for the discharge of waste water from its public water treatment facility into the Mississippi River. The application represented that the maximum daily concentration of total suspended solids (TSS) in the plant’s discharge was 20,000 mg/1 with normal concentrations at 10,000 mg/1. Thus, East Moline requested a permit be issued with a TSS limitation of 20,000 mg/1. The Agency issued a draft permit proposing that the TSS discharge be limited to 15 mg/1 as a 30-day average and 30 mg/1 as a daily maximum. East Moline filed objections to the proposed permit and also submitted a formal written comment to the Agency, wherein it argued the proposed TSS limitations were arbitrary, unreasonable and invalid as applied to East Moline and, therefore, requested the Agency to revise the permit to the original standard of 20,000 mg/1 it previously requested. As support for its position, East Moline noted the current economic hardship it was facing due to loss of industry and the inadequate funds available to install control equipment to meet the Agency’s proposed limitation levels. The Agency, at the hearing before the Board, stipulated that certain meetings regarding East Moline’s inability to meet the limitations and discussions regarding environmental impact took place, although no documentation of these meetings was included in the Agency record before the Board. Despite East Moline’s objections, on November 20, 1986, the Agency issued to East Moline an NPDES permit subject to the TSS limitations as previously outlined in its draft permit.

On December 19, 1986, East Moline filed an NPDES permit appeal with the Board challenging the TSS limitation imposed by the Agency permit on the grounds the regulations establishing the limits were arbitrary, unreasonable and invalid as applied to East Moline, because of the cost of compliance and the nonadverse impact of the present discharge on the water quality of the Mississippi River. A hearing was held before a hearing officer August 28, 1987. East Moline attempted to present testimony and admit exhibits into evidence regarding the cost of compliance with the TSS restriction and a study concerning the environmental impact of the current discharge level. The hearing officer disallowed the evidence on the basis that it had not been submitted to the Agency and was, therefore, beyond the scope of review. The Board upheld the hearing officer’s decision and subsequently denied East Moline’s appeal.

Two issues are presented for review. First (issue 1), whether a petitioner can challenge the validity of a regulation as applied in the context of a permit application and appeal, and second (issue 2), whether a petitioner can submit evidence not previously presented to the Agency at a hearing before the Board hearing officer. The questions presented are issues of law, not of fact.

Regarding issue 1, the Agency permit issued to East Moline restricted the TSS discharge in accordance with regulation 35 Illinois Administrative Code section 304.124(a) (1985), which prohibits discharge of effluent containing TSS in excess of 15 mg/1. East Moline has made no claim that the regulation does not control its public water discharge facility, nor does East Moline claim that the regulation was improperly promulgated and therefore is arbitrary and unreasonable in a general sense. Instead, East Moline argues that because it cannot comply with the TSS limitations for financial reasons, or because East Moline’s discharge, at present levels, does not create an adverse economic impact, the regulation is invalid as applied to East Moline’s facility.

East Moline cites Celotex Corp. v. Pollution Control Board (1983), 94 Ill. 2d 107, 445 N.E. 2d 752, Village of Cary v. Pollution Control Board (1980), 82 Ill. App. 3d 793, 403 N.E. 2d 83, and Central Illinois Public Service Co. v. Pollution Control Board (1976), 36 Ill. App. 3d 397, 344 N.E. 2d 229 (CIPS), for the proposition that a permit applicant may challenge the application of a regulation in a permit appeal on the basis that the rule as applied to the particular individual or entity would impose an arbitrary and unreasonable hardship. Our review of these cases, however, reveals that East Moline has misconstrued the holdings, and these cases are not determinative of the issue at hand.

East Moline’s application for permit was made pursuant to section 39 of the Illinois Environmental Protection Act (the Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 1039). Section 39(a) of the Act states “it shall be the duty of the Agency to issue such a permit upon proof by the applicant that the facility *** will not cause a violation of this Act or of regulations hereunder.” Further, “[i]n granting permits the Agency may impose such conditions as may be necessary to accomplish the purposes of this Act, and as are not inconsistent with the regulations promulgated by the Board hereunder.” (Ill. Rev. Stat. 1987, ch. 111½, par. 1039(a).) Section 39(b) of the Act specifically allows the Agency to issue NPDES permits as defined in the Federal Water Pollution Control Act Amendments of 1972 (P.C. 92 — 500) (33 U.S.C.A. §1251 et seq. (1985)), and further, allows for conditions to be imposed to accomplish the purposes of this Act, including effluent limitations. (Ill. Rev. Stat. 1985, ch. 111½, par 1039(b).) If the Agency refuses to grant a permit or grants a permit with conditions under section 39, the aggrieved party may file a petition for hearing with the Board. “At such hearing the rules prescribed in Sections 32 and 33(a) of this Act shall apply, and the burden of proof shall be on the petitioner.” (Ill. Rev. Stat. 1987, ch. 111½, par. 1040(a)(1).) Section 32 of the Act outlines hearings and states that any party “may make oral *** testimony, cross-examine witnesses, or take any combination of such actions. Ill. Rev. Stat. 1987, ch. 111½, par. 1032.

Generally, the issue to be decided at a permit hearing is whether the applicant can demonstrate that no violation of the Act would occur if the permit was issued or that no violation would occur if the permit was issued without special conditions. (Ill. Rev. Stat. 1987, ch. 111½, par. 1039(a); see also Joliet Sand & Gravel Co. v. Pollution Control Board (1987), 163 Ill. App. 3d 830, 516 N.E. 2d 955.) The cases of Celotex and CIPS, however, stand for the proposition that a permit applicant may challenge the validity of a Board regulation at a permit hearing. In Celotex, the Agency contended that section 29 of the Act sets forth the exclusive method for challenging a regulation by taking action within 35 days of its adoption. (Ill. Rev. Stat. 1987, ch. 111½, par. 1029.) Thus, the Agency contended the only means for testing the validity of a regulation after a permit denial is to request the Board to change the regulation under section 28 of the Act (Ill. Rev. Stat. 1987, ch. 111½, par. 28). The Celotex court stated that there is nothing in the Act indicating the General Assembly intended to deprive one the opportunity to challenge the validity of a regulation simply because the regulation was not challenged immediately after its adoption. The court further stated the absurdity of the Agency’s position was clear if the applicant was not in business 35 days after adoption of the regulation. (Celotex, 94 Ill. 2d 107, 445 N.E. 2d 752.) Thus, the court held that since the regulations, upon which the Agency based its permit denial, were invalid as improperly promulgated, the permit applicant was entitled to test the validity of the regulations at the permit application hearing. (Celotex, 94 Ill. 2d 107, 445 N.E. 2d 752.) Celotex, however, does not address the issue of whether the validity of a regulation can be challenged as applied to the applicant for the reasons stated by East Moline in the present case. The CIPS court also reached the same decision as the Celotex court and was cited in Celotex as authority and also similarly fails to address the issues at hand. We completely agree with these decisions but find them inapplicable to this issue.

On the other hand, the Cary decision, also cited by East Moline, holds that the validity of a regulation as applied may be challenged at a Board hearing. We agree with Cary because the central reason for a variance is that the regulation as applied to a petitioner would be arbitrary or unreasonable. Again, however, Cary does not address the issue presented herein and is therefore not controlling.

The statutory mechanism for obtaining relief from compliance with a regulation on the basis of an arbitrary or unreasonable hardship is to petition for a variance under section 35 of the Act. (Ill. Rev. Stat. 1987, ch. 111½, par. 1035.) East Moline is not challenging the general applicability of a regulation, but is stating the regulation as applied to East Moline creates an unreasonable hardship. In Commonwealth Edison Co. v. Pollution Control Board (1974), 25 Ill. App. 3d 271, 323 N.E. 2d 84, the court determined that a petitioner could not challenge a regulation as applied at a hearing pursuant to section 29 and stated:

“Where one fails to challenge the rules generally and instead seeks to relax their enforcement against him exclusively due to arbitrary and unreasonable hardship, the legislature has determined that the appropriate remedy is for the aggrieved party to seek a variance in accordance with Title IX of the Act. If that is denied, the aggrieved can petition to this court for review based on the record at that proceeding.” (Commonwealth, 25 Ill. App. 3d at 281, 323 N.E. 2d at 90.)

Although Commonwealth concerned a challenge under section 29, we believe its reasoning is more applicable to the present situation than that of Celotex, CIPS or Cary.

The issue at a permit hearing is whether the applicant can prove no violation of the Act will occur. (Ill. Rev. Stat. 1987, ch. 111½, par. 1039(a).) Applying for what is, in effect, a variance at a permit hearing is not provided for by the Act or case law, and this makes sense because there are undoubtedly many more applications for permits than petitions for variances and the permit procedure should not be unduly delayed by variance requests.

Regarding issue 2, East Moline argues that the hearing officer and Board improperly excluded evidence in direct contradiction of the holding in Dean Foods Co. v. Illinois Pollution Control Board (1986), 143 Ill. App. 3d 322, 492 N.E. 2d 1344. Moreover, East Moline argues that the Board improperly failed to follow the plain requirements of its own procedural regulations regarding the introduction of evidence in NPDES permit appeal proceedings that is outside the Agency record. (35 Ill. Adm. Code §105.102(b)(8) (1985).) Section 105.102(b)(8) of the Board regulations specifically addresses NPDES permit appeals and states:

“The hearings before the Board shall extend to all questions of law and fact presented by the entire record. The Agency’s findings and conclusions on questions of fact shall be prima facie true and correct. If the Agency’s conclusions of fact are disputed by the party or if issues of fact are raised in the review proceeding, the Board may make its own determination of fact based on the record. If any party desires to introduce evidence before the Board with respect to any disputed issue of fact, the Board shall conduct a de novo hearing and receive evidence with respect to such issue of fact.” (35 Ill. Adm. Code §105.102(6)(8) (1985).)

Furthermore, section 40(a)(1) of the Act, allowing for appeals of permit denials or grants of permits with conditions by the Agency under section 39, indicates hearings before the Board shall be conducted in accord with section 32 of the Act. (Ill. Rev. Stat. 1987, ch. 111½, par. 1040(a)(1).) In turn, section 32 of the Act says any party to a hearing “may be represented by counsel, may make oral or written argument, offer testimony, cross-examine witnesses, or take any combination of such actions.” Ill. Rev. Stat. 1987, ch. 111½, par. 1032.

In Dean Foods, the court squarely addressed the question of whether a permit applicant could introduce new evidence at a hearing before the Board. The issue arose when the Agency refused to grant petitioner a permit allowing it to test for TSS at a point in its waste water stream, which it had previously been allowed by permit. Apparently, petitioner had two separate streams that it used for its operation; one being for effluent discharge and the other for cooling purposes. The petitioner in the past had been allowed to test the TSS level for its discharge at a point after the waste water stream had been diluted by the cooling stream. The Agency refused to grant the permit allowing for testing after the dilution point on the grounds that it violated the dilution rule (35 Ill. Adm. Code §304.102 (1985)) and petitioner failed to provide sufficient information for determining that the best degree of treatment of waste water consistent with technological feasibility, economic reasonableness, and sound engineering judgment (BDT) had been provided before the Agency could consent to sampling at the location suggested by petitioner. Petitioner appealed the permit condition and presented evidence at the Board hearing that it was providing BDT to its waste water prior to dilution. This evidence was not presented, however, to the Agency and, over objection, the hearing officer allowed the evidence subject to a Board ruling on admissibility. The Board subsequently excluded petitioner’s BDT evidence because, although petitioner had disputed before the Agency whether BDT was being provided, the Board found that a “de novo” hearing as prescribed by 35 Illinois Administrative Code section 105.102(b)(8) (1985), referred only to the manner in which the Board reviewed the issue, not to the introduction of new evidence before the Board. The court, however, determined that the plain language of the regulation required introduction of the proffered evidence and analyzed section 105.102(b)(8) as follows:

“The first three sentences of section 105.102(b)(8) deal with the role of the record in Board hearings. They state that the hearings must cover all questions of law and fact presented by the record and that when issues of fact are raised the Board may make its own decision based on the record. Then the rule discusses matters beyond the record. It states that if any party desires to ‘introduce’ evidence ‘before the board,’ the Board must conduct a de novo hearing ‘and receive evidence.’ This language clearly refers to evidence being presented directly to the Board and not merely via the record. To interpret this language to mean that a party at a de novo hearing is confined to the mere re-presentation of evidence already presented and accounted for in the record is not supportable. Such a hearing would amount to merely a ‘live’ review of the record and not be a de novo hearing at all. The Board’s interpretation would render the rule meaningless.
Moreover, the term ‘de novo’ has a well-known legal meaning. Black’s Law Dictionary defines a hearing de novo as:
‘Generally a new hearing or a hearing for the second time, contemplating an entire trial in the same manner in which matter was originally heard and a review of previous hearing. On a hearing “de novo” court hears matter as court of original and not appellate jurisdiction.’ Black’s Law Dictionary 649 (5th ed. 1979).
American Jurisprudence characterizes de novo judicial review of administrative proceedings as:
‘[Tjrying the matter anew the same as if it had not been heard before and as if no decision had been previously rendered. *** Even though designated an “appeal,” a review in which the court is not confined to a mere re-examination of the case as heard before the administrative agency but hears the case de novo on the record before the agency and such further evidence as either party may see fit to produce is to be regarded as an original proceeding.’ (2 Am. Jur. 2d Administrative Law sec. 698 (1962).)
This characterization of a de novo proceeding is absolutely consistent with the rule, which first discusses the use of the record and then evidence beyond the record.” Dean Foods, 143 Ill. App. 3d at 334-35, 492 N.E. 2d at 1353.

We have no quarrel with the rationale of Dean Foods; however, we do not believe Dean Foods creates an open door for a petitioner to present any evidence it so desires. Section 39(a) of the Act requires the Agency to put in writing its reasons for denying a permit. (Ill. Rev. Stat. 1987, ch. 111½, par. 1039(a).) A petitioner’s first opportunity to take issue with the Agency’s factual conclusions supporting denial occurs at the Board hearing. If, in fact, the Agency makes inferences or bases its decisions on its own investigations, it would be manifestly unfair to restrict an applicant to mere cross-examination at a Board hearing, as a means of refuting the Agency’s factual conclusions, especially when keeping in mind that an NPDES permit applicant does not have the opportunity for a hearing before the Agency. Nonetheless, the statutorily mandated issue to be addressed at a Board hearing based on a permit denial is whether the applicant can prove that the facility will not cause a violation of the Act or of the regulations. (Ill. Rev. Stat. 1987, ch. 111½, par. 1039(a).) Except for those cases holding that the general validity of a Board regulation may be addressed at a permit hearing, the above issue is the only relevant issue to be addressed, and therefore, any tendered evidence must relate to that issue.

Both parties state that the cases of Joliet Sand & Gravel Co. v. Pollution Control Board (1987), 163 Ill. App. 3d 830, 516 N.E. 2d 955, and Alton Packaging Corp. v. Pollution Control Board (1987), 162 Ill. App. 3d 731, 516 N.E. 2d 275, are at odds with Dean Foods, but we do not agree. In Joliet Sand & Gravel, the petitioner was entitled to a hearing before the Board subsequent to being denied an operating permit by the Agency. Prior to the hearing, however, both written and oral discovery was had, and the petitioner was allowed to present witnesses and other evidence refuting the Agency’s reasons for denial. Within the context of that opinion, this court stated that “the sole question before the Board is whether the applicant proves that the application, as submitted to the Agency, demonstrated that no violation of the Environmental Protection Act would have occurred if the requested permit had been issued.” Joliet Sand & Gravel, 163 Ill. App. 3d at 833.) We do not consider this language contradictory with the court’s decision in Dean Foods. We believe Dean Foods merely stands for the proposition that additional evidence may be submitted to the Board in support of its application, when there are issues of fact to be addressed as a result of an Agency denial or the imposition of undesired conditions on a permit. The central issue as stated in Joliet Sand & Gravel, however, remains the same. Moreover, Joliet Sand & Gravel concerned denial of an operating permit, and therefore, this court had no occasion to address the “de novo” language of section 105.102(b)(8) which specifically applies to NPDES permit hearings. Nor was any question presented to this court in Joliet Sand & Gravel about whether evidence, not submitted to the Agency, should be excluded by the Board. All the evidentiary questions in Joliet Sand & Gravel were procedural in nature.

Similarly, in Alton, the court in dicta rejected petitioner’s argument that it was entitled to an entirely new hearing in which to submit reports that it failed to submit at a previous Board hearing. The Board thus had no opportunity to either admit or reject petitioner’s supposed evidence at the previous hearing. Moreover, the Alton decision does not regard an NPDES permit, and therefore, the court was not required to interpret section 105.102(b)(8) of the Board regulations as that regulation applies solely to NPDES permit hearings and arguably allows for evidence to be introduced before the Board that would not be allowed for other types of permit hearings. Alton has no bearing on this case.

We agree with the result reached in Dean Foods, but decline to give the opinion the broad interpretation now lobbied for by East Moline. Nothing in the Dean Foods decision indicates an applicant has free reign to go into matters not germane to the issue to be decided. In this case, the evidence East Moline tendered to the Board was irrelevant for determining whether it could prove that no violation of the Act or regulations would occur if the permit was granted without the restrictions imposed. East Moline’s remedy is to file a variance petition under section 35 of the Act. Ill. Rev. Stat. 1987, ch. 111½, par. 1035.

Finally, there were a number of motions filed with this court. All motions filed, except for the Board’s motion for leave to file supplemental authority and East Moline’s motion to take judicial notice of the Dean Foods record, are denied. The excepted motions above are granted.

Therefore, for all of the foregoing reasons, the decision of the Illinois Pollution Control Board is affirmed.

Affirmed.

BARRY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WOMBACHER JUSTICE HEIPLE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SUSAN A. HUNT, Defendant-Appellee.
    Third District
    No. 3 — 88—0552
    Opinion filed September 11, 1989.

      HEIPLE, J., dissenting.
    John A. Barra, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Susan A. Hunt, was charged with unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, pars. 705(d), 1402(b).) Prior to trial, she filed a motion to suppress evidence. After conducting a hearing on the motion, the trial court denied it. The court subsequently convicted her of the charged offenses. She then filed a post-trial motion to suppress evidence and grant her a new trial. The court reconsidered its earlier ruling and granted her motion. The State appeals. We affirm.

The issue on appeal is whether the evidence used against the defendant at her trial was obtained in violation of her freedom from unreasonable search and seizure as guaranteed by the fourth amendment to the United States Constitution (U.S. Const., amend. IV). The relevant evidence showed that at approximately 9 p.m. on February 20, 1988, the defendant, Sidney Rutherford, and Ricky Keeton went to Tony’s liquor store in Peoria. They parked across the street in the parking lot of a closed Miracle Mart. Rutherford got out of the car and went into the liquor store. The defendant, who owned the car, then moved from the back seat to the driver's seat.

Officer Greg Metz of the Peoria police department testified that he was on patrol that evening. During his patrol he stopped at the Miracle Mart parking lot. He often went to that vicinity to watch for minors purchasing liquor at Tony’s and people drinking in their cars. He noticed the defendant’s car and observed that two people were seated in the front seat. He saw no one exit or enter the vehicle and was unable to determine whether the individuals were minors or adults. From his original vantage point, Metz could not see any activity by the vehicle’s occupants.

After watching the vehicle for two or three minutes, Metz drove up behind it with his headlights off. When he was about 10 feet from the car, he turned on his high-beam headlights and his spotlight. As he exited his patrol car, Metz noticed the individual in the passenger seat duck or make a quick movement of some kind. Metz walked up to the passenger window. Keeton rolled down the window, and Metz asked him if he was drinking in the car. Keeton responded that he was not. During this exchange, Metz was shining his flashlight into the car. He noticed clear plastic bags containing a green, leafy substance near Keeton’s right foot. Metz opened the car door and ordered Keeton out of the car. He then reached into the car and picked up one of the bags. Keeton was searched and handcuffed. Metz then continued his search of the vehicle. The defendant remained seated in the driver’s seat throughout this period.

When other officers arrived, the defendant was ordered out of the car, searched, and handcuffed. The defendant testified that she never consented to having her car searched. The State and the defendant stipulated at trial to tests showing that both cannabis and cocaine were retrieved in the search of the defendant’s vehicle.

The fourth amendment applies to all seizures of persons, including brief investigatory stops of vehicles. (United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690.) In determining whether the search and seizure was “unreasonable,” the court must first inquire whether the officer’s action was justified at its inception. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Although an officer need not have probable cause to briefly detain a suspect, he is required to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In the absence of any basis for suspecting a person of misconduct, the balance between the public interest and the individual’s right to personal security and privacy tilts in favor of freedom from police interference. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous. People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.

In the instant case, the sole issue is whether Officer Metz’s investigatory stop was justified at its inception. Metz’s own testimony reveals that he could not point to any objective facts supporting a reasonable suspicion that the defendant was involved in criminal activity when he observed her sitting in her car. He simply saw two individuals seated in a car across the street from a liquor store. He saw no one enter or leave the vehicle. From his vantage point, he could not determine the ages of the people in the vehicle, or what, if any, activity they were engaged in. His observation of the vehicle lasted only two or three minutes. Accordingly, Metz’s subsequent investigatory stop was based entirely upon his knowledge of past criminal activity in the area. While past criminal activity in an area may be a relevant factor supporting an investigatory stop, it alone cannot justify the stop. The investigating officer must reasonably suspect the particular subjects of the investigation. Since here Officer Metz did not have a reasonable suspicion about the occupants of the defendant’s car, the trial court properly granted the motion to suppress the illegally seized evidence and granted the defendant a new trial.

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

Affirmed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

dissenting:

The trial court found the defendant, Susan A. Hunt, guilty of unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, pars. 705(d), 1402(b).) The court subsequently granted the defendant’s post-trial motion to suppress illegally seized evidence and to grant her a new trial. Since Officer Greg Metz noticed the cannabis while he was lawfully positioned outside the defendant’s vehicle, the trial court erred in suppressing the evidence. Accordingly, I dissent.

Officer Greg Metz testified that on the night in question he was watching the Miracle Mart parking lot. He stated that the parking lot was frequently used by underage drinkers who were purchasing alcohol at the liquor store across the street. After watching two people in the defendant’s car for approximately two minutes, he drove to within 10 feet of the car. He then illuminated the vehicle with his high-beam headlights and spotlight. As he got out of the car, he saw a passenger in the front seat make a quick movement. Officer Metz walked up to the passenger side of the vehicle and shined his flashlight into the car. The male passenger, Ricky Keeton, rolled down the window. Metz asked the occupants if they had been drinking, and Keeton said that they had not. From his position outside the car, Metz saw a green, leafy substance inside clear plastic bags at the passenger’s feet. Metz then opened the car door, had Keeton step out, and took one of the bags. Another officer searched the defendant and found in her pocket a brown paper bag containing a white powdery substance.

Where a police officer converses with an individual but does not restrain the individual’s freedom to walk away, an investigative stop had not occurred, even if the conversation was investigative in nature. (People v. Kennedy (1978), 66 Ill. App. 3d 267, 383 N.E.2d 713.) A police officer, just as any citizen, has the right to be in a parking lot next to a business which is open to the public. (People v. Caserta (1984), 123 Ill. App. 3d 608, 463 N.E.2d 190.) There is no legitimate expectation of privacy shielding that portion of the interior of a car which may be viewed by inquisitive passerby, and the use of a flashlight to illuminate such an area does not trigger fourth amendment protection. Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.

Contrary to the majority’s holding, I find that Officer Metz did not subject the defendant to an investigative stop. Rather, Metz properly walked up to the car, which was in a parking lot next to a business open to the public. As already noted, this was a parking lot known to be frequented by underage drinkers who were purchasing alcohol at a liquor store across the street. His question to Keeton did not transform the encounter into an investigative stop. Neither Keeton nor the defendant was restrained from leaving at that time. Consequently, Officer Metz’s observation of the marijuana in plain view was proper. The officer’s subsequent actions were also proper because at that point, they were based on probable cause.

For these reasons, the order suppressing the evidence should be reversed and I dissent.


author: PRESIDING JUSTICE WOMBACHER

text:
      In re JOANNE INGERSOLL, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. JoAnne Ingersoll, Respondent-Appellant).
    Third District
    No. 3 — 88—0660
    Opinion filed September 5, 1989.
    Rehearing denied October 16, 1989.

      Jeff Plesko, of Legal Advocacy Service, of Carbondale, and Guardianship & Advocacy Commission, of Peoria (Cynthia Z. Tracy, of counsel), for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The respondent, JoAnne Ingersoll, appeals the trial court’s order involuntarily admitting her to the Department of Mental Health and Developmental Disabilities (DMHDD).

The State of Illinois filed a petition to involuntarily admit the respondent to the DMHDD on August 31, 1988, following her summary admission thereto earlier in August of that year. The State alleged that she suffered from mental illness and was unable to provide for her basic physical needs so as to keep herself from harm. More specifically, it was alleged that the respondent was unkempt, uncooperative, argumentative, confused, alcohol dependent, and emphysematous. In addition, she refused medication and suffered from a bipolar disorder which caused her to exhibit a “looseness of association and pressured speech.” Finally, the State claimed respondent was homeless, insolvent, and lacked familial contact.

A certified social worker examined the respondent on August 30, 1988, and submitted a medical certificate which indicated that respondent is mentally ill, reasonably expected to seriously injure herself or someone else, and is otherwise endangered by her inability to provide for her basic physical needs. This social worker based her opinion on several factors, including respondent’s psychiatric and alcoholic history, her speech pattern, her lack of future plans, her physical problems, her refusal of medication and placement, and minimal family support.

A staff physician reiterated the same allegations in her certified written statement. She later testified that respondent had been previously admitted to Zeller Mental Health Center, was living in her automobile prior to this admission to Zeller, and exhibited agitation, hostility, sarcasm, hallucinations, rambling, confusion, delusions, physical ailments, and grandiosity. The physician stated that in her opinion, this condition could worsen if she were not properly treated and if she failed to take medication. This doctor recommended three to four weeks of mental health hospitalization to physically and mentally stabilize her and to eliminate or minimize her disability.

The respondent requested a discharge stating she had income, transportation, and could care for herself. In addition, she had a friend who would help her get settled, look for an apartment, and assist her with her financial affairs and various needs. Her friend testified to the same.

The trial court found that respondent’s mental illness endangered her by inhibiting her ability to care for herself, so she was involuntarily admitted to Zeller. It is that decision from which respondent appeals.

The respondent contends she was denied certain procedural safeguards and that denial deprived the trial court of jurisdiction. Specifically, she alleges that her discharge request should have been attached to the State’s petition and the certificates submitted in support of the State’s petition were inadequate and therefore legally deficient.

The respondent did not complain or raise the issue regarding the failure of the State to attach her discharge request to its petition at the hearing or subsequent thereto. Therefore, this issue shall be deemed waived for purposes of this appeal. However, there is no question the court was advised and aware the respondent desired to be discharged; her discharge request was referred to in the State’s petition and attached certificates and during her testimony. Regardless of the existence of her discharge request, the trial judge determined there was sufficient evidence to warrant her involuntary admission to the DMHDD.

The respondent also contends that the certificates accompanying the State’s petition were legally insufficient. In support thereof, the respondent first claims the certificate of the social worker does not indicate whether she provided the respondent with her rights under section 3 — 208 of the Mental Health and Developmental Disabilities Code (hereinafter the Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 208). This section provides that when a person examines an individual for certification, the examiner shall inform the examinee in a clear, simple manner of the purpose of the examination and, further, that the examinee does not have to talk to the examiner. If the examinee has not been so informed, the examiner shall not be permitted to testify at a subsequent hearing regarding respondent’s admission. This section does not indicate the examiner may not file a certificate; rather, it provides one remedy, which is that the examiner may not testify about respondent’s admissions at trial. (People v. Pritchett (1986), 148 Ill. App. 3d 746, 499 N.E.2d 1029.) Therefore, the certificate submitted by the social worker was properly filed and could be considered by the trial court in adjudicating respondent’s condition vis-a-vis the State’s petition.

The respondent also argues that the certificate of the social worker is insufficient because the social worker is not a clinical psychologist. This issue also was not raised at the hearing; therefore, it can be deemed waived. The respondent’s contention also fails on the merits. The definition of a qualified social examiner includes a clinical social worker. (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 122.) The certificate filed by the social worker identifies her as a certified social worker. There was otherwise sufficient evidence presented that if any error occurred at this phase of the proceeding, it was harmless and did not alter the trial judge’s decision.

The respondent next complains the certificate submitted by the staff physician was insufficient because the Code requires that one of the certificates in support of the petition for involuntary admission be completed by a psychiatrist and neither certificate was so completed. (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 703.) The respondent claims this staff physician was not a psychiatrist within the meaning of the Code. The Code provides that the term “psychiatrist” includes a physician who has at least three years of formal training in the diagnosis and treatment of mental illness. (Ill. Rev. Stat. 1987, ch. 91½, par. 1 — 121.) At the hearing, the respondent stipulated to the physician’s qualifications, and thereby, in effect, waived this issue. (In re Hightshoe (1987), 155 Ill. App. 3d 371, 508 N.E.2d 488.) Even if the medical certificate of the staff physician was technically deficient because she was not a doctor specializing in psychiatry, the error was harmless due to the abundance and quality of the substantive evidence presented on behalf of the State. The trial court was not therefore deprived of jurisdiction. Technical deficiencies in medical certificates accompanying a petition for involuntary admission do not affect the trial court’s jurisdiction. (In re Wheeler (1987), 152 Ill. App. 3d 371, 504 N.E.2d 524.) The trial judge had the authority to hear this case.

The respondent lastly contends the trial court erroneously found her subject to involuntary admission. An individual is subject to involuntary admission if the State establishes by clear and convincing evidence that a person is mentally ill and, because of that illness, she is unable to provide for her basic needs so as to guard herself from serious harm. (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 808.) This illness must prevent her from caring for her basic physical needs by substantially impairing her thought process, perception of reality, emotional stability, judgment, behavior, or ability to cope with life’s ordinary demands. (People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105.) These premises must be established by an adequate medical opinion. (In re Williams (1987), 151 Ill. App. 3d 911, 503 N.E.2d 816.) “Adequate” means that at least one examining psychiatrist or clinical psychologist testifies explicitly that respondent is reasonably expected to harm himself. (Ill. Rev. Stat. 1987, ch. 91½, par. 3 — 807.) The certified social worker and staff physician both symptomatically found the respondent to be suffering from a mental disorder; therefore, the trial court did not abuse its discretion in finding her subject to involuntary admission to the DMHDD.

When diagnosing and treating a mental health disorder, it is difficult to determine, diagnose, and treat the disorder because there are so many different abstract signs exhibited by those believed to be afflicted. This is a highly specialized area of medicine which is better left to the experts, who are the most knowledgeable sources of the different diagnoses, treatment, and prognoses. In the absence of a reason to the contrary, this physician’s diagnosis and treatment plan of hospitalization should be given credence and followed. The trial judge was able to determine the same after he observed the respondent’s appearance and demeanor and listened to her testimony at the hearing. The trial judge was in a superior position to assess the same and rule accordingly.

The evidence was sufficient, medically and legally, to involuntarily admit the respondent to DMHDD; therefore, the trial judge did not abuse his discretion in so ruling. It is not necessary that someone harm herself or another before being subject to involuntary admission. (In re Haber (1979), 78 Ill. App. 3d 1120, 398 N.E.2d 121.) In other words, the threat of harm is sufficient to involuntarily admit one legitimately believed to suffer from a serious mental health disability.

Based on the foregoing, the circuit court of Peoria County is hereby affirmed.

Affirmed.

STOUDER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAN CABRERA, Defendant-Appellant.
    Third District
    No. 3 — 88—0721
    Opinion filed September 15, 1989.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

A jury convicted the defendant, Juan Cabrera, of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4). The trial court sentenced him to four years in prison. The defendant appeals, arguing that he was denied his right to a speedy trial.

The record shows that the defendant was incarcerated throughout the pretrial period. Accordingly, he was entitled to be tried within 120 days (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)). The State and the defendant agree that 95 days of the delay before the defendant’s trial were attributable to the State. They disagree as to whether the 35-day period between June 6, 1988, and July 11, 1988, was attributable to the State or the defendant.

The facts surrounding that 35-day period show that on May 6, 1988, the defendant filed a motion for the appointment of a psychiatrist to determine whether he was fit to stand trial. On June 6, 1988, the parties appeared before the court and defense counsel noted that the psychiatrist had completed his evaluation and filed his report. Defense counsel then asked the court to set the case for trial. The court asked the parties for an appropriate date, and the State suggested that the cause be set in the regular course of the court’s docket. Defense counsel agreed that that would be appropriate. The court then offered June 20, June 27, and July 5, 1988, as possible trial dates. Defense counsel stated that July 5 was a problem but that either of the other dates was fine. The court then set the trial for July 11, 1988. Although the defendant was not tried until August 22, 1988, the parties agree that the period from July 11 on is attributable to the State.

On a motion for discharge, the defendant bears the burden of proving that he was not responsible for the delays prior to trial. (People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.) A delay is considered to have been occasioned by the defendant if his acts have caused or contributed to the delay or where he has expressly agreed to a continuance on the record. (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) When a defendant files a pretrial motion, he is responsible for the time naturally associated with processing the motion. (DeCarlis, 88 Ill. App. 3d at 637, 410 N.E.2d at 680.) The trial court’s decision as to the accountability for delay will be sustained on appeal absent a clear showing of abuse of discretion. People v. Sonntag (1984), 128 Ill. App. 3d 548, 470 N.E.2d 631.

In the instant case, the defendant’s motion for a psychiatric evaluation, as well as the uncertainty of the timing and outcome of the evaluation, made it impossible to set a date for trial. On June 6, when the parties returned to court following the evaluation, defense counsel expressly agreed that trial should be set in the regular course of the court’s docket. The trial judge named three possible trial dates, and defense counsel said one date was impossible, but either of the remaining two dates would be fine. The court then picked a different date, July 11, for trial. The defendant did not object to that date.

We recognize that mere silence on the defendant’s part does not amount to an agreement to a delay. (People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872.) Here, however, the defendant’s motion led to the scheduling conference being delayed until June 6. At that time, the defendant agreed to setting the trial in the regular course of the court’s docket. Apparently, for one reason or another the court decided that July 11 was the best time on its docket to hold the trial. Under these circumstances, we find that the defendant contributed to and acquiesced in the delay in his trial. Accordingly, we find that the trial court did not abuse its discretion in attributing the period between June 6 and July 11 to the defendant and therefore denying his motion to discharge.

The judgment of the circuit court of Peoria County denying the defendant’s motion to discharge for failure to bring him to trial within 120 days is affirmed.

Affirmed.

SCOTT and BARRY, JJ., concur.


text:
      In re MARRIAGE OF JOYCE A. GENTRY, Petitioner and Counterrespondent-Appellee, and HAROLD W. GENTRY, Respondent and Counterpetitioner-Appellant.
    Third District
    No. 3-88-0587
    Opinion filed September 15, 1989.

      Arthur J. Inman and Anthony P. Corsentino, both of Peoria, for appellant.
    Nicholas H. Ores, of Peoria, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The respondent, Harold W. Gentry, appeals the trial court’s order dividing the parties’ marital property and awarding the petitioner, Joyce A. Gentry, maintenance. The respondent also questions the propriety of the amount and duration of the maintenance award.

The parties were married in 1963. They have two children as a result of their marriage, one of whom, Lynette, was emancipated by the time the proceedings were commenced, and the other, Todd, became emancipated after the trial court proceedings concluded, but prior to the commencement of these appeal proceedings.

Since 1965, Harold worked for Caterpillar, Inc., and he earned $3,936 a month, taking home $2,752.96. Joyce acquired a high school degree and attended Bob Jones University; however, she did not graduate due to a lack of credit hours. She worked in a clerical capacity during the first years of the marriage, but quit upon learning she was pregnant with their first child. Her principal vocation was as a housewife and mother; however, she occasionally volunteered outside the home.

Joyce was not without any monetary offering to this relationship. For instance, in 1979, Joyce inherited $11,940.46, which she contributed to the marital estate.

The parties formally separated on February 18, 1988. Thereafter, Joyce attended junior college to learn word processing transcription and data entry. She obtained a clerical job; however, the work was extremely sparse, so she continued to seek employment up to the time of hearing.

The parties’ marital residence sold for $83,000, of which $63,700 was realized. The parties’ other major assets include two automobiles, and an IRA worth $7,398, and other securities valued at $1,000. The parties’ debts included $2,527 for credit cards and $3,989 for an automobile. The parties anticipated substantial debts to be incurred subsequent to this hearing, i.e., moving expenses and an upcoming wedding.

The parties resolved several issues prior to this hearing. Several issues remained and were submitted to the trial court for resolution. The trial court assigned the auto and credit card payments to Harold, and he was awarded the older automobile, the condition of which was in question. The trial court determined there was $99,141.75 in liquid assets between the parties, which included the amount realized from the sale of their residence. Each party was allocated $4,600 for respective attorney fees and $6,000 was set aside for Todd’s first-year college expenses. This last amount was to be apportioned equally and after the first year, Harold was responsible for two-thirds of Todd’s college expenses based upon the current Illinois State University rates. Following these equivalent deductions, $83,941.75 remained, of which $55,000 (66%) was awarded to Joyce and the remainder to Harold.

Harold received the tax exemption for Todd and two-thirds of the 1987 income tax refund. Joyce received maintenance in the amount of $900 per month for the first eight months. Thereafter, Harold was to pay Joyce $750-per-month maintenance. Furthermore, Harold was to pay Joyce’s health insurance for three years following the entry of the order.

Harold contends the trial court abused its discretion in dividing the parties’ marital property. In almost any contested dissolution proceeding, the trial judge faces a most difficult decision due to the individuality of every dissolution proceeding and is required to make the fairest decision possible. The trial judge is afforded the benefit of the presentation of live testimony and physical or demonstrative evidence before a decision is required to be rendered. If and when there are discrepancies, inconsistencies, or omissions in the evidence, the trial judge can better attempt to eliminate those areas by initiating further questioning, which enables him to make the fairest and most equitable decision. A reviewing court experiences a more difficult task in analyzing the record of the trial court proceedings and reviewing the appropriateness of the judge’s decision.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) sets forth many factors that the trial judge is to consider when dividing marital property. Without reiterating the same, several factors apply to this matter, while others are inapplicable. It is apparent the trial judge applied the relevant requisite factors which led to his decision. Some of the more relevant factors include the duration of the marriage, the value of the property set apart to each spouse, the contribution of each spouse to the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties. Ill. Rev. Stat. 1987, ch. 40, par. 503(d).

In nearly every dissolution-related appeal, the applicable standard of review is whether the trial court abused its discretion in rendering its decision. (In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 524 N.E.2d 695.) Such an abuse of discretion will be found where a court acts arbitrarily and without employing its conscientious judgment or where it exceeds the bounds of reason and ignores the recognized principles of law so that substantial injustice arises. (In re Marriage of Murphy (1983), 117 Ill. App. 3d 649, 453 N.E.2d 113.) We, as a reviewing court in a case such as this, cannot substitute our judgment or discretion for that of the trial court. In re Marriage of Ribordy (1984), 128 Ill. App. 3d 1073, 471 N.E.2d 1029.

A review of the applicable statutory factors indicates that the trial court resolved the distribution of the parties’ marital property in a correct and equitable manner. Due to Joyce’s long-term status as a mother and homemaker who chose not to engage in monetary employment outside of the home, she did not have the skills which would make her talents readily marketable and therefore employable. Harold complains that Joyce received a disproportionate share of their marital assets, and he should, under the circumstances, be entitled to a greater percentage. For many reasons, disparities in the distribution of marital assets do result; however, because a disparity exists, the trial court’s determination is not necessarily inequitable or incorrect. The IMDMA does not require an equal division of marital property. (In re Marriage of McDonald (1983), 113 Ill. App. 3d 116, 446 N.E.2d 559.) A homemaker makes a substantial contribution to a marriage and marital household comparable to that of the wage earner, and the homemaker’s contribution should not be discounted simply because she does not make a financial or monetary contribution to the relationship. In re Marriage of Stralow (1981), 95 Ill. App. 3d 235, 419 N.E.2d 1227.

Due to the singular elements, characteristics, and circumstances surrounding every contested dissolution proceeding, every case should be determined and reviewed on an individual basis. (In re Marriage of McCartney (1983), 116 Ill. App. 3d 512, 452 N.E.2d 114.) In reviewing several cases, it is apparent that property divisions similar to this division and even more disparate have been upheld by our appellate courts. (See In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 524 N.E.2d 695.) The trial judge took into consideration the special circumstances that surrounded this case and rendered the most equitable and appropriate decision possible. In dividing the parties’ marital assets, he did not abuse his discretion. We therefore affirm the decision of the trial court.

Harold next contends that the trial court not only abused its discretion with respect to the amount and duration of the maintenance, but in awarding maintenance altogether. We disagree.

Section 504(a) of the IMDMA sets forth the guidelines for the award of maintenance. Section 504(a) provides:

“(a) In a proceeding for dissolution of marriage *** the court may grant a maintenance order for either spouse, only if it finds that the spouse seeking maintenance:
(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” Ill. Rev. Stat. 1987, ch. 40, par. 504(a).

The standard of review, as with property division, in awarding maintenance is whether the trial court abused its discretion. (In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 460 N.E.2d 1.) Joyce had been removed from the work force for nearly 20 years while she was busy as a mother and homemaker. Her education was limited with respect to having any prospects for gainful, self-sufficient employment. Shortly after the parties’ separation, she obtained a word processing transcription certificate which enabled her to earn $4 per hour, but the employment opportunities were scarce.

The trial court after initially awarding maintenance reversed itself in part by reducing Joyce’s monthly award by $150. The trial court found that Joyce was in “need” of maintenance, which is a crucial fact in deciding whether to award maintenance. (In re Marriage of Ribordy (1984), 128 Ill. App. 3d 1073, 471 N.E.2d 1029.) However, Joyce has an affirmative obligation pursuant to law to acquire gainful employment which should enable her to live with independent means, apart from any contribution from her ex-spouse. Maintenance should be considered only after there is not sufficient property awarded for the party to be self-sufficient. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.) Of the marital assets awarded to Joyce, many were not immediately revenue producing, which the trial court determined. It is the income producible by the property, rather than its value, which is to be considered regarding the award of maintenance. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) It is not necessary that a person sell assets or impair capital when the other spouse has sufficient income to meet his needs and make a contribution to hers. In re Marriage of Heller, 153 Ill. App. 3d at 234-35.

The trial court did not likewise abuse its discretion in the amount and duration of maintenance it awarded. According to section 504(b) of the IMDMA, once the trial court determines that there will be an award of maintenance, the court must determine the amount and duration of that award. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) The trial court took a careful look at the amount and duration of the maintenance award, changed the amount and duration, thereby reversing its earlier determination from $900 a month to $750 a month after the first eight months, with the maintenance award to be reviewed at the end of four years. The court made the best determination in light of the evidence and affidavits before the court.

However, no real provision was made to monitor Joyce’s efforts to find suitable employment, etc. Because of the terms of this dissolution order and its related divisions and distributions, we find it is necessary and appropriate that the trial court retain jurisdiction of the maintenance award. After two years from the entry of the original order, the same shall be reviewed annually, at the request of either party, for the purpose of taking into account Joyce’s affirmative obligation and progress in becoming self-sufficient, as well as to permit the judge to review the current income and expenses of the parties. In any event, the maintenance award shall not be permanent.

Based on the foregoing, the circuit court of Peoria County is affirmed as herein modified.

Affirmed as modified.

BARRY and STOUDER, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN PALMER, Defendant-Appellee.
    Second District
    No. 2 — 88—0254
    Opinion filed September 6, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE NASH

delivered the' opinion of the court:

The State appeals pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)) from an order dismissing an indictment charging murder brought against defendant, Steven Palmer. In 1984, defendant was first indicted for the murder of Thomas Degen, and, after trial, a jury returned a verdict finding him to be guilty but mentally ill, and he was sentenced to a term of natural-life imprisonment. In People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154, this court reversed defendant’s conviction on finding that a reasonable doubt remained whether he was sane at the time of the offense, and remanded the cause for the entry of a judgment of not guilty by reason of insanity. On October 28,. 1987, a new indictment was returned by a grand jury against this defendant for the murder of Degen, which the trial court dismissed as barred by principles of double jeopardy.

In the present appeal, the State contends that our reversal of defendant’s conviction in Palmer was based on the weight, rather than the sufficiency, of the evidence, and that the 1987 indictment was thus not barred by double jeopardy or the doctrines of res judicata or collateral estoppel.

The facts were noted in the first appeal of this case. On December 28, 1983, defendant stabbed 14-year-old Thomas Degen while in line at a McDonald’s restaurant in Waukegan; the child later died of his injuries. After the stabbing, defendant ran to a nearby bowling alley and exhibited bizarre behavior until the police arrived. At trial, there was extensive testimony with respect to defendant’s past and present mental condition from four expert witnesses, defendant’s father, and other lay witnesses. Defendant, who was 32 years old, had exhibited extremely abnormal behavior since age 17 and had been diagnosed as having schizophrenia; he had been treated for that illness for several years by numerous doctors and as an inpatient and outpatient at several hospitals. He was being treated for his psychosis at the time he stabbed Degen.

Each of the three expert witnesses who testified on defendant’s behalf stated that he was suffering from paranoid schizophrenia and that his psychosis was severe. Two of the defense experts testified that defendant was unable to distinguish right from wrong and unable to conform his conduct to the requirements of the law at the time of the offense. The State’s expert, Dr. Ronald Baron, testified that, in his opinion, defendant was faking his psychosis. Dr. Baron did not agree that defendant was a paranoid schizophrenic, yet, could not unequivocally state whether defendant was schizophrenic. At many points in his testimony, Dr. Baron’s statements were self-contradictory and speculative. When he examined defendant, Dr. Baron found no evidence of defendant’s psychosis, but he stated that defendant was “grossly psychotic” on the day of the stabbing; that he was able to distinguish right from wrong and could conform his conduct to the requirements of the law; and, that he was not mentally ill. Dr. Baron considered that defendant suffered from a drug-induced psychosis, but the doctor failed to examine defendant for any signs of drug usage or administer any drug tests. A jury found defendant guilty, but mentally ill, and a sentence of natural-life imprisonment was imposed. On appeal, this court reversed defendant’s conviction, finding that there was no real evidentiary conflict for the jury to resolve because the testimony of the lay witnesses corroborated the defense experts’ conclusion and Dr. Baron’s testimony was weak and self-contradictory. This court concluded that a reasonable doubt remained as to defendant’s sanity at the time of the offense which required reversal of the conviction. Palmer, 139 Ill. App. 3d at 973-74, 487 N.E.2d at 1159.

The State filed a petition for rehearing, asserting that this court had improperly substituted its judgment for that of the jury on the issue of the credibility of the expert witnesses. After consideration of the State’s petition for rehearing, we denied it (Palmer, 139 Ill. App. 3d 966, 487 N.E.2d 1154), and our supreme court denied the State’s petition for leave to appeal. Upon the issuance of our mandate, the trial court entered a judgment of not guilty by reason of insanity whereupon the State moved for reinstatement of the guilty but mentally ill verdict, asserting that the appellate court judgment was void. The trial court denied the State’s motion, and the State then sought an original writ of mandamus or supervisory order from our supreme court. In People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90, 514 N.E.2d 180, the supreme court determined that issuance of a writ of mandamus or prohibition, or a supervisory order, was inappropriate because it would in effect constitute an additional appeal to which the State was not entitled. (118 Ill. 2d at 98-99.) On September 14, 1988, we reissued a mandate directing the trial court to enter a judgment of not guilty by reason of insanity.

On October 28, 1987, defendant was reindicted by a grand jury for the murder of Thomas Degen. His motion to dismiss the indictment on grounds it was as barred by double jeopardy and the doctrines of res judicata and collateral estoppel was granted by the trial court, and the State has again appealed.

We consider first defendant’s argument that, because the 1987 indictment was returned prior to this court’s September 14, 1988, mandate, the circuit court lacked jurisdiction to proceed on the new indictment, and it was void. We disagree. Defendant correctly notes that once appellate jurisdiction attaches it continues until a mandate is issued and filed in the circuit court. (See People v. McBride (1983), 114 Ill. App. 3d 75, 79, 448 N.E.2d 551, 553; People v. Baker (1980), 85 Ill. App. 3d 661, 662, 406 N.E.2d 1152, 1153.) However, appellate jurisdiction of the 1984 indictment did not preempt the trial court from proceeding on a new indictment returned against defendant by a grand jury. Our 1988 mandate concerned an appeal taken from defendant’s conviction under the 1984 indictment and had no effect on the return and filing of a new indictment in 1987. The trial court properly exercised its original jurisdiction over the 1987 indictment. See Ill. Const. 1970, art. VI, §9.

Citing Tibbs v. Florida (1982), 457 U.S. 31, 72 L. Ed. 2d 652, 102 S. Ct. 2211, the State contends that it should not be barred from re-prosecuting defendant on the ground of double jeopardy because, it asserts, the reversal of defendant’s conviction was based on the weight, rather than the sufficiency, of the evidence. The State argues that our reversal in Palmer was based on the weight of the evidence because we found that Dr. Baron’s testimony was not credible.

In Tibbs, the Supreme Court decided the issue of whether the double jeopardy clause (U.S. Const., amend. V) bars retrial after a reviewing court sets aside a conviction on the ground that the verdict was against the manifest weight of the evidence. (Tibbs, 457 U.S. at 32, 72 L. Ed. 2d at 655, 102 S. Ct. at 2213.) In deciding that question, the court noted that Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141, had carved a narrow exception to the general rule that a defendant who successfully appeals his conviction is subject to retrial. (Tibbs, 457 U.S. at 40, 72 L. Ed. 2d at 660, 102 S. Ct. at 2217.) Under the Burks exception, if a reviewing court determines that the evidence is legally insufficient to support a conviction, the double jeopardy clause precludes retrial. (Burks, 437 U.S. at 18, 57 L. Ed. 2d at 14, 98 S. Ct. at 2150-51.) The Burks court stated that “legally insufficient” means that the government’s case was so lacking that it should not have been submitted to the jury. Burks, 437 U.S. at 16, 57 L. Ed. 2d at 12-13, 98 S. Ct. at 2150.

The Tibbs court, however, reaffirmed the general rule that principles of double jeopardy do not have the same force when a reviewing court disagrees with a jury’s resolution of conflicting evidence and concludes that a guilty verdict is against the manifest weight of the evidence. (Tibbs, 457 U.S. at 42, 72 L. Ed. 2d at 661, 102 S. Ct. at 2218.) The court stated:

“A reversal on this ground [weight of the evidence], unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Instead, the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion no more signifies acquittal than does a disagreement among the jurors themselves. A deadlocked jury, we consistently have recognized, does not result in an acquittal barring retrial under the Double Jeopardy Clause. Similarly, an appellate court’s disagreement with the jurors’ weighing of the evidence does not require the special deference accorded verdicts of acquittal.” Tibbs, 457 U.S. at 42, 72 L. Ed. 2d at 661-62, 102 S. Ct. at 2218.

The Illinois Supreme Court has also recognized that a reversal based on the weight, rather than the sufficiency, of the evidence does not bar retrial. See People v. Davis (1986), 112 Ill. 2d 78, 491 N.E.2d 1163.

We apply the principles set forth in Tibbs, Burks, and Davis to the facts of this case. In Palmer, defendant argued that his conviction should be reversed because the State failed to prove his sanity beyond a reasonable doubt. (Palmer, 139 Ill. App. 3d at 972, 487 N.E.2d at 1158.) In determining that the State failed to meet its burden, this court noted that there was no real evidentiary conflict for the jury to resolve. Essentially, the State had presented no evidence which tended to show defendant was sane at the time of the offense, which the State was required, under the law then in effect, to prove beyond a reasonable doubt.

'Based on his speculation that defendant was suffering from a drug-induced psychosis, the State’s expert, Dr. Baron, concluded that at the time defendant stabbed Degen he knew the difference between right and wrong and had the ability to conform his conduct to the requirements of the law. The State offered no other evidence that defendant was sane at the time of the stabbing. Dr. Baron’s opinion was necessarily discounted, however, because he acknowledged that he did not examine defendant for signs of current drug use or administer tests designed to detect the presence of drugs in defendant’s system, and also testified defendant was “grossly psychotic” at the time of the offense. Clearly, there was no evidentiary basis to support the State’s theory, or Dr. Baron’s opinion, that defendant’s acts were the result of a drug-induced psychosis.

In light of the lack of evidence of defendant’s sanity in the State’s case, our reversal of the conviction in Palmer was based on the legal insufficiency of the evidence and not the weight of the evidence, as suggested by the State. Because the reversal of a defendant’s conviction for insufficiency of the evidence bars retrial under the double jeopardy clause (Burks, 437 U.S. at 18, 57 L. Ed. 2d at 14, 98 S. Ct. at 2150-51), the trial court properly dismissed the 1987 indictment for the same offense against defendant. In deciding this issue as we have, it is unnecessary to address whether the 1987 indictment was also barred under the doctrines of res judicata or collateral estoppel.

Discussion of the established doctrines of res judicata and estoppel aside, it would, indeed, be a novel, and unfortunate, evolution of criminal jurisprudence to permit the State to simply recharge an accused by indictment, information, or complaint, and again put him to trial, where it has been established that the State neglected, or was unable, to offer sufficient evidence to sustain a judgment of conviction in an earlier trial for the same offense. The State did fail in this case to carry its burden of proving defendant’s sanity beyond a reasonable doubt, as the law then required where other evidence has raised that defense. (People v. Palmer (1986), 139 Ill. App. 3d 966, 972, 487 N.E. 2d 1154; People v. Silagy (1984), 101 Ill. 2d 147, 168-69, 461 N.E.2d 415; Ill. Rev. Stat. 1981, ch. 38, pars. 3 — 2, 6 — 2.) A trial court determination that a defendant was sane at the time of an offense must be reversed, under the law, if so improbable or unsatisfactory under the evidence presented as to create a reasonable doubt as to defendant’s sanity, or if it was so clearly erroneous under the evidence as to suggest a defendant was considered sane because of passion or prejudice. People v. Silagy, 101 Ill. 2d at 169, 461 N.E.2d at 425-26.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS MAGDALENO, Defendant-Appellant.
    Second District
    No. 2 — 88—0057
    Opinion filed September 6, 1989.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William J. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Luis Magdaleno, appeals from an order of the circuit court dismissing his petition for post-conviction relief. Defendant raises one issue on appeal: whether he is entitled to a new hearing on the petition because the State wrongly filed a motion to strike on which the trial court relied when it dismissed the petition. We reverse and remand.

After a jury trial, defendant was convicted of three counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 9 — 1(a)(1)). This court, in an unpublished order, affirmed defendant’s conviction and sentence. People v. Magdaleno (1987), 153 Ill. App. 3d 1163 (unpublished order under Supreme Court Rule 23).

On May 18, 1987, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). On May 26, 1987, the State’s Attorney’s office filed a motion to strike the petition for post-conviction relief. On the same day, the court held a hearing without appointing counsel for petitioner. The court stated that it read the motion to strike and the Riile 23 order of this court. The court gave reasons addressing the merits of the State’s motion to dismiss and dismissed the petition on its merits. The court never entered a written order.

Defendant contends that it was error for the court to consider the motion to strike without first having made a determination of frivolity or appointing counsel for defendant and, therefore, the cause should be remanded for further proceedings under the Act. Section 122 — 2.1 of the Act provides:

“(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. ** *
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122— 6.
(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1.)

Within 30 days of the court finding that the petition was not frivolous or patently without merit, the State shall then answer or move to dismiss. Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5.

Defendant argues that the trial court did not comply with the statutory procedure when it reviewed and relied on the State’s motion to strike the petition. Failure to comply with the provisions of section 122 — 2.1 renders the dismissal of a post-conviction petition void. People v. Porter (1988), 122 Ill. 2d 64, 86.

In People v. Brothers (1989), 179 Ill. App. 3d 788, the State filed a motion to dismiss the post-conviction petition three days after it was filed. At the hearing on the petition, the trial court considered the State’s arguments in support of the motion to dismiss. We held that it was error for the court to consider the State’s motion because the trial judge alone is to consider whether a post-conviction petition is frivolous or patently without merit in the absence of pleadings or input by the State. (Brothers, 179 Ill. App. 3d at 791.) We found that the court’s consideration of the State’s motion constituted noncompliance with the statutory requirements of section 122 — 2.1(a). (179 Ill. App. 3d at 791.) We therefore reversed the order of dismissal and remanded the cause. 179 Ill. App. 3d at 791.

In the instant case, less than two weeks after the post-conviction petition was filed the State filed a motion to strike the petition. The record indicates the trial court improperly considered the arguments presented in the State’s motion to dismiss in determining whether the petition ought to have been dismissed. This input by the State was improper and constituted a failure to comply with section 122 — 2.1(a). Thus, under Brothers and People v. Nelson (1989), 182 Ill. App. 3d 1071, the dismissal order is void.

The State argues that we should remand the cause for consideration of the petition under section 122 — 2.1(a). Defendant argues that the cause should be remanded for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Act. In Brothers we remanded the cause for consideration of the petition under section 122 — 2.1(a). (Brothers, 179 Ill. App. 3d at 791.) In Nelson we declined to follow that part of Brothers and instead remanded the cause for proceedings in accordance with sections 122 — 4 through 122 — 6 of the Act (Nelson, 182 Ill. App. 3d at 1074-75) because the petition was not dismissed within 30 days of its filing pursuant to section 122 — 2.1(a). Since the petition in the present case was not dismissed within 30 days of its filing pursuant to section 122 — 2.1(a), Nelson is controlling, and we therefore remand the cause for consideration of the petition under sections 122 — 4 through 122 — 6 of the Act.

The order of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS and LINDBERG, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL A. SMITH, Defendant-Appellee.
    Second District
    No. 2 — 88—0929
    Opinion filed September 12, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Timothy J. McJoynt, of Jones & McJoynt, of Downers Grove, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County which vacated the conviction of defendant, Michael A. Smith, for driving while under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)). Defendant brought his motion to vacate pursuant to section 2 — 1401(a) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(a)) eight months after his conviction following a guilty plea. The State contends that the trial court erred in granting defendant’s motion on the basis that the motion did not state adequate grounds for relief under section 2 — 1401. We reverse.

The record indicates that defendant was arrested on August 12, 1987, and charged with driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(2)); driving with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(1)); and driving a motorcycle in violation of his driver’s license classification (Ill. Rev. Stat. 1987, ch. 95½, par. 6— 104(a)). Defendant was subsequently charged with criminal damage to State-supported property (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 4(a)) arising out of damage to a telephone in the Du Page County jail.

On December 3, 1987, defendant appeared without counsel and pleaded guilty to all of the charges except driving with a blood-alcohol concentration of 0.10 or more, which was nol-prossed. The trial court admonished defendant and advised him of his rights. After accepting the guilty plea, the court fined defendant $500 for the DUI conviction, $60 for the violation of driver's license classification conviction, and $100 for the criminal damage to property conviction. Defendant did not move to vacate his plea within 30 days of the convictions or anytime thereafter.

On July 29, 1988, defendant filed a verified motion pursuant to section 2 — 1401 of the Code to vacate his conviction of driving while under the influence of alcohol. Defendant’s motion alleged that (1) he appeared in court without counsel on December 3, 1987; (2) prior to his case being called, defendant spoke with an assistant State’s Attorney regarding a plea of guilty; (3) during this conversation, the assistant State's Attorney indicated to defendant that if he were to plead guilty he would probably receive a sentence of court supervision on the charge of DUI; (4) at no time did the assistant State’s Attorney inform defendant that a conviction would result in his driving privileges being revoked for at least one year; (5) defendant was under pressure and without the benefit of counsel to advise him of the potential consequences of his plea; (6) the admonishments by the court were incomplete and insufficient in that they failed to advise him regarding the potential consequences of his plea; (7) defendant’s father was terminally ill at the time defendant entered his plea; (8) defendant did not receive his notices of revocation and suspension resulting from his conviction in this matter until after the expiration of 30 days from the December 3, 1987, judgment, thus preventing him from filing a timely post-judgment motion to vacate his plea of guilty; and (9) should the court see fit to vacate the convictions, defendant would be able to present a meritorious defense and extenuating circumstances.

At the hearing on the motion, the trial court ruled that it had not adequately admonished unrepresented DUI defendants in general, and this defendant in particular, as to the potential loss of driving privileges resulting from a conviction of DUI. Accordingly, the court ruled that defendant’s motion to vacate would be granted on that basis. The court subsequently entered an order in accordance with its oral ruling and set the matter for further proceedings. The State then brought this timely appeal.

We initially note that the State has filed this appeal pursuant to Supreme Court Rule 301 (107 Ill. 2d R. 301), which governs appeals from final orders. Because there are matters still pending below, the State’s citation to Supreme Court Rule 301 is incorrect. We nonetheless note our jurisdiction to consider this case under Supreme Court Rule 304(b)(3) (107 Ill. 2d R. 304(b)(3)), which governs appeals from orders granting or denying relief under section 2 — 1401. (See Nashlund v. Sabade (1976), 39 Ill. App. 3d 139, 144.) Having determined that we have jurisdiction to hear the appeal, we further note that defendant has not filed an appellee’s brief. However, because the record is simple and the claimed errors are such that we can easily decide them without the aid of an appellee’s brief, we will address the merits of the case. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

The State contends that the trial court erred in granting defendant’s motion to vacate pursuant to section 2 — 1401 of the Code on the basis that the motion did not state adequate grounds for relief under that section. We agree.

Section 2 — 1401 of the Code, formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from the entry thereof. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401(a); see Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220.) To be entitled to relief under section 2 — 1401, the party seeking relief must set forth specific factual allegations supporting (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 motion. Smith v. Airoom, 114 Ill. 2d at 220-21.

In a criminal proceeding, section 2 — 1401 provides a modern substitute for a writ of error coram nobis permitting vacation of judgments obtained by duress or fraud, or judgments entered because of a party’s excusable mistake or ignorance, where, without the party’s own negligence, the party has been deprived of a defense which, if known to the court, would have prevented judgment. (People v. Smith (1988), 176 Ill. App. 3d 132, 136; In re Charles S. (1980), 83 Ill. App. 3d 515, 517.) In other words, relief under this section is appropriate where the omission of a valid defense was caused by fraud, duress, or excusable mistake. (See People v. Stewart (1978), 66 Ill. App. 3d 342, 347.) The various types of error of fact which a section 2 — 1401 motion is employed to correct include such matters as the death of a party before judgment, infancy where the party is not properly represented, incompetency at the time of trial, and a valid defense which was not made due to duress, fraud, or excusable mistake. (People v. Hinton (1972), 52 Ill. 2d 239, 243.) The motion must establish adequate grounds for relief and must show that the party seeking relief was not negligent in failing to raise that ground at trial. (People v. Sanchez (1986), 115 Ill. 2d 238, 284; People v. Jennings (1971), 48 Ill. 2d 295, 298; see Stewart, 66 Ill. App. 3d at 347.) Motions brought pursuant to section 2 — 1401 have been held to be an improper means of raising issues such as whether a defendant was properly admonished as to the consequences of a plea of guilty. See Withers v. State (1961), 23 Ill. 2d 131, 136; In re Charles S., 83 Ill. App. 3d at 517.

In the instant action, defendant sought vacature of his conviction of DUI on the basis that the trial court failed to admonish him of the consequences resulting from that conviction. Specifically, defendant argued that the trial court failed to advise him that a DUI conviction would result in the revocation of his driving privileges by the Secretary of State for one year. The trial court granted defendant’s motion to vacate and noted for the record that its ruling was based on its failure to admonish defendant that a conviction of DUI would result in the revocation of his driving privileges. The trial court erred in granting defendant’s motion on this basis.

As noted above, a section 2 — 1401 motion is an improper avenue by which to challenge the sufficiency of admonitions regarding the consequences of a guilty plea. (See Withers, 23 Ill. 2d at 136; In re Charles S., 83 Ill. App. 3d at 517.) A trial court’s failure to provide the proper admonishments is not in the nature of a valid defense to the underlying action omitted due to duress, fraud, or excusable mistake which, if known to the defendant or the court at the time of trial, would have precluded judgment. (See People v. Berland (1978), 74 Ill. 2d 286, 313-14; Smith, 176 Ill. App. 3d at 136; People v. Banks (1984), 121 Ill. App. 3d 279, 287.) Moreover, even if a section 2 — 1401 motion was a proper means by which to challenge the sufficiency of admonitions regarding a guilty plea, defendant in the instant action would not be entitled to relief. It is well settled that a trial court is not responsible for advising an accused of the civil or collateral consequences of a guilty plea. (People v. Correa (1985), 108 Ill. 2d 541, 550; People v. Jenkins (1970), 128 Ill. App. 2d 351, 355.) Thus, the court’s failure to admonish defendant of the revocation of his driving privileges is of no consequence, and the trial court erred in granting defendant’s motion on this basis.

We further note an additional basis for reversing the trial court. To be entitled to relief under section 2 — 1401, the party seeking relief .must set forth specific factual allegations supporting the existence of a meritorious defense. (Smith v. Airoom, 114 Ill. 2d at 220; see People v. Stergar (1979), 77 Ill. App. 3d 660, 661.) The motion must establish adequate grounds for relief. (Sanchez, 115 Ill. 2d at 284; Jennings, 48 Ill. 2d at 298.) It is not sufficient for the motion or supporting affidavit to merely assert that a meritorious defense exists without also pleading relevant facts supporting the alleged defense. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 73.) If the trial court grants a petition which fails this requirement, a reviewing court will reverse that judgment. 136 Ill. App. 3d at 73.

In the instant action, defendant’s motion to vacate merely asserted that “[sjhould this court see fit to vacate these convictions and permit the Defendant to either re-plead or demand trial, the Defendant will be able to present a meritorious defense and extenuating cir- | cumstances.” The motion does not set forth any particular facts which I would support a defense to the DUI charge and no court could judge the merits of a defense on the basis of this allegation alone. See Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill. App. 3d 573, 577-78.

For the above reasons, we reverse the order of the circuit court which vacated defendant’s conviction of DUI.

Reversed.

UNVERZAGT, P.J., and NASH, J., concur.