author: JUSTICE KNECHT

text:
    SHELLEY G. SHINN et al., Objectors-Petitioners, v. THE ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0328
    Opinion filed May 25, 1989.

      Julian E. Cannell and Ruth A. Snyder, both of Kavanagh, Scully, Sudow, White & Frederick, P.C., of Peoria, for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Sandra J. Holman, of Illinois Education Association, of Springfield, and Robert H. Chanin and Bruce R. Lerner, both of Bredhoff & Kaiser, of Washington, D.C., for respondents Rockford Education Association and Dunlap Education Association.
   JUSTICE KNECHT

delivered the opinion of the court:

The question presented by this appeal is whether employees included in an educational labor bargaining unit, who are not members of the union which is their exclusive bargaining representative, must file objections in order to have their fair share fee payments to the union reduced by the amounts thereof attributable to expenditures for union activities unrelated to collective bargaining. We hold such employees must file objections in order to avoid paying their proportionate shares of union expenditures unrelated to collective bargaining and affirm the decision of the Illinois Educational Labor Relations Board which so held.

Disputes of the type with which we are here confronted arise from a labor union’s duty to fairly represent all employees — both union members and nonmembers — included in bargaining units for which the union is the exclusive bargaining representative. In such situations, the union’s right to receive compensation for services it provides nonmembers conflicts with the first amendment rights of such employees to freedom of association for the advancement of ideas. The Supreme Court has held in such circumstances, nonmembers of unions may be required to pay the union which is their exclusive bargaining representative only their fair share of the costs of collective bargaining and other activities normally and reasonably employed by the union to implement its duties as the employees’ exclusive bargaining representative. See Ellis v. Brotherhood of Ry., Airline & Steamship Clerks, Freight Handlers, Express & Station Employees (1984), 466 U.S. 435, 80 L. Ed. 2d 428, 104 S. Ct. 1883; see also Abood v. Detroit Board of Education (1977), 431 U.S. 209, 52 L. Ed. 2d 261, 97 S. Ct. 1782.

When it enacted the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.), the General Assembly recognized educational labor unions provide important services to nonmembers for whom the unions are the exclusive bargaining representatives. Therefore, the legislature provided in section 11 of the IELRA for the deduction of fair share fees from the pay of nonmembers of educational labor unions, when an educational employer and a union have executed a contract providing for such deductions:

“When a collective bargaining agreement is entered into with an exclusive representative, it may include a provision requiring employees covered by the agreement who are not members of the organization to pay to the organization a fair share fee for services rendered. The exclusive representative shall certify to the employer an amount not to exceed the dues uniformly required of members which shall constitute each non member employee’s fair share fee. The fair share fee payment shall be deducted by the employer from the earnings of the non member employees and paid to the exclusive representative.
The amount certified by the exclusive representative shall not include any fees for contributions related to the election or support of any candidate for political office. Nothing in this Section shall preclude the non member employee from making voluntary political contributions in conjunction with his or her fair share payment.” (Ill. Rev. Stat. 1987, ch. 48, par. 1711.)

In recognition of the constitutional right of nonmembers of unions not to be compelled to financially support union activities unrelated to collective bargaining, the Illinois Educational Labor Relations Board (IELRB) has promulgated rules which establish a procedure for handling objections to fair share fees. These rules are designed to insure payers of fair share fees are not compelled to support union activities unrelated to collective bargaining which they find objectionable. 80 Ill. Adm. Code §§1125.10 through 1125.90 (Supp. Jan. 1,1986).

Pursuant to the IELRB’s rules, the petitioners, who are not members of the educational labor unions which are their exclusive bargaining representatives, filed objections to the fair share fees which are deducted from their pay. Generally, the petitioners contended they are entitled to automatic advance reductions in their fair share fees in the amounts thereof which represent expenditures for activities unrelated to collective bargaining, regardless of whether they filed objections to the fees. The petitioners contended the requirement they file objections to their fair share fees, in order to receive rebates of the amounts thereof attributable to union expenditures for activities unrelated to collective bargaining, imposes an “unfair burden” on them.

The petitioners and the educational labor unions involved in this case (the Rockford Education Association, IEA/NEA (Illinois Education Association/National Education Association), and Dunlap Education Association, IEA/NEA), filed an agreed statement of facts with the IELRB which provides: (1) petitioners are employed by public school districts which have entered into collective-bargaining agreements with IEA affiliates; (2) the collective-bargaining agreements in question contain provisions requiring employees within the bargaining units who are not union members to pay the unions which are their exclusive bargaining representatives a fair share fee for “services rendered”; (3) substantially all of the local IEA affiliates who charge nonmembers fair share fees certify such fees in amounts equal to union dues; (4) during the 1985-86 school year, IEA affiliates charged nonmembers who objected to the amount of their fair share fees 86.7% of the dues charged union members; (5) during the 1986-87 school year, IEA affiliates charged nonmembers who objected to amount of their fair share fees 84.69% of the dues charged union members; (6) during the 1985-86 and 1986-87 school years, 13.3% and 15.31%, respectively, of the dues uniformly required of union members were rebated to objecting fee payers; (7) with respect to the 1986-87 school year, perhaps as much as 15.31% of the amount of fair share fees certified to employers are attributable to expenditures for “ ‘nonchargeable activities’ and (8) none of the IEA’s expenditures are contributions related to election or support of any candidate for political office.

In an order entered April 8, 1988, the IELRB rejected the petitioners’ contentions and held educational labor unions are not required to provide automatic advance reductions in the fair share fees of nonmembers who do not file objections to the amount of the fees. The principal reason which the IELRB stated for its decision was section 11 explicitly authorizes the exclusive representative of the employees in a bargaining unit to certify a fair share fee equal to the amount of the dues uniformly required of union members, provided the fee does not include any contributions to candidates for political office. In the IELRB’s view, the requirement fair share fees be limited to amounts attributable to “services rendered” is satisfied by it determining the percentages of the fees attributable to such services after the filing of objections, pursuant to the applicable administrative rules. (80 Ill. Adm. Code §§1125.10 through 1125.90 (Supp. Jan. 1, 1986).) The IELRB further held in view of the petitioners receiving notices their fair share fees were equal to the amount of union dues and notices of the procedure for objecting to the fair share fees, the petitioners were not unduly burdened by the requirement they file objections in order to obtain reductions of the amount of their fair share fees. In support of its decision, the Board relied on the legislative history of section 11, and on Federal decisions holding objecting nonmember fee payers have the burden of making known their objections to fair share fees.

In appealing the IELRB’s decision, the petitioners contend that under section 11, the fair share fees which may be withheld from the pay of nonmembers of educational labor unions may not exceed the amounts of unions dues attributable to expenditures for “services rendered,” may not exceed the union dues uniformly charged to nonmembers, and may not include any amounts attributable to expenditures for political contributions. The petitioners further argue a requirement nonmembers file objections in order to obtain rebates of the amounts of their fair share fees attributable to expenditures for activities unrelated to collective bargaining imposes an undue burden on such individuals.

In support of their argument, petitioners rely on what they contend is the plain and unambiguous language of section 11. The petitioners maintain the Federal decisions relied upon by the IELRB are distinguishable, because under Federal law, objections to fair share fees are necessary in order for nonmembers to have standing to assert compelled payment of various components of fair share fees violates their constitutional rights.

As a basis for its position nonmembers must file objections in order to avoid paying the portions of their fair share fees which are attributable to expenditures unrelated to collective bargaining, the IELRB argues as used in section 11, “services rendered” may include activities unrelated to collective bargaining. The IELRB also relies on the contrast between the language of section 11 and the language of the portion of the Illinois Public Labor Relations Act (IPLRA) governing fair share fees (Ill. Rev. Stat. 1987, ch. 48, par. 1603(g)), on its rules governing fair share fee objections (80 Ill. Adm. Code §§1125.10 through 1125.90 (Supp. Jan. 1, 1986)), and on the legislative history of section 11.

Also, the IELRB asserts allowing fair share fee objections to remain in force indefinitely would deprive nonmembers of the right to periodically review financial information provided them by the unions. Finally, the IELRB maintains requiring advance reductions of the fair share fees of nonmembers in the amounts thereof attributable to activities unrelated to collective bargaining would deprive unions of the fair share fees which they would otherwise receive from nonmembers who are not dissatisfied with the services unrelated to collective bargaining which the unions provide them.

The educational labor unions’ argument begins with the observation that interpretations by administrative agencies of statutes which they are charged with enforcing are entitled to great weight. The unions state the IELRB’s decision was mandated by the comprehensive rules which it has promulgated governing objections to fair share fees. (80 Ill. Adm. Code §§1125.10 through 1125.90 (Supp. Jan. 1, 1986).) The unions assert (without citation of authority) the IELRB expended an enormous amount of time and resources in the development of these rules and note the IELRB is directed by section 5 of the IELRA to “adopt, promulgate, amend or rescind rules and regulations *** as it deems necessary and feasible to carry out this Act.” Ill. Rev. Stat. 1987, ch. 48, par. 1705(h).

The educational labor unions also reiterate the arguments of the IELRB which are premised on the language of section 11, the contrast between the language of section 11 and the language of the relevant portion of the IPLRA, and the legislative history of section 11. The unions also contend the phrase “services rendered,” as used in section 11, is not so clear and unambiguous that resort to extrinsic aids in interpreting it is impermissible.

As the petitioners point out, clear statutory language should generally be given effect without resort to extrinsic aids in construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) However, the term “services rendered,” in the context of section 11 of the IELRA, is simply too unspecific to support application of this principle. There are no clear indications of the services which this term encompasses, and it is uncertain whether this term refers only to services related to collective-bargaining activities. For these reasons, we conclude resort to extrinsic materials is permissible in determining the meaning of the relevant language of section 11.

As noted by the respondents, the version of what is now section 11 of the IELRA (Ill. Rev. Stat. 1987, ch. 48, par. 1711) which was contained in the initial draft of the IELRA passed by the legislature provided:

“Section 13. Non-member proportionate share payments. When a collective bargaining agreement is entered into with an exclusive representative, it may include in the agreement a provision requiring employees covered by the agreement who are not members of the organization to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment, measured by the amounts of dues uniformly required of members. The organization shall certify to the employer the amount constituting each non-member employee’s proportionate share which shall not exceed dues uniformly required of members. In such case, the proportionate share payment in this Section shall be deducted by the employer from the earnings of the non-member employees and paid to the employee organization.” (83d Ill. Gen. Assem. House Proceedings, May 18, 1983, at 2648-49 (1983 Sess.).)

This version did not contain the language presently contained in section 11 dealing with contributions to candidates for political office. Governor Thompson issued an amendatory veto of the legislation which contained the version of section 11 just quoted. In his amendatory veto message, the Governor suggested, inter alia, the legislation be amended so section 11 of the IELRA reads as it presently does.

During the Senate debate concerning the IELRA after it was amendatorily vetoed, the following exchange occurred between Senators Demuzio and Bruce:

“SENATOR DEMUZIO:
On your explanation, you referred to a procedure whereby the fair share payers who [sic] object and receive a partial refund of the fair share fee for those amount of dues that do not go toward the activities related to improving working conditions. Since there’s no specific reference to such a refund procedure in the bill, am I correct in assuming that you envision the Educational Labor Relations Board promulgating rules calling for school employee unions to establish procedures?
* * *
SENATOR BRUCE:
I ... I certainly think that the Educational Labor Board in drafting their rules and regulations would take a close look at the Supreme Court and what they’ve handled. *** After the Aboud [sic] decision came down, every AF of L ... CIO Union in the United States and including the National Education Association and the AFT, set up and have implemented a voluntary program to refund money to objectors. Under most of those plans, an exclusive representative promptly at the end of its fiscal year selects an impartial third party to determine the appropriate fair share amount of funding. ‘If a fair share payer objects to paying for activities unrelated to collective bargaining,’ and those are the words of the United States Supreme Court, ‘and improving working conditions,’ again, the words of the United States Supreme Court, ‘the exclusive representative shall promptly establish an interest bearing escrow account and place the amount established by the impartial third party not properly a part of the fair share payment therein and put that in escrow; thereafter, a dissenting employee would receive payment for the amount determined to have been expended for unrelated activities.’ He would get that back plus accrue[d] interest. I ... you should note two things that complies [sic] with the ... with the decision in Ellis ***. First of all, that an objector will get back his money for unrelated activities; that is unrelated to collective bargaining and working conditions. That comes back quickly and automatically. Secondly, the money withheld is not used by any ... exclusive bargaining agent. It is immediately put up in ... in escrow, and the amount due back is determined and refunded with interest.” (Emphasis added.) 83d Ill. Gen. Assem., Senate Proceedings, Nov. 2, 1983, at 58-60 (statements of Senators Demuzio & Bruce).

Finally, the provision of the IPLRA which addresses the issue of fair share fees payable by nonmembers of unions, and which was enacted at the same session of the legislature as the IELRA, provides as follows:

“(g) ‘Fair share agreement’ means an agreement between the employer and an employee organization under which all or any of the employees in a collective bargaining unit are required to pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and other conditions of employment, but not to exceed the amount of dues uniformly required of members. The amount certified by the exclusive representative shall not include any fees for contributions related to the election or support of any candidate for political office. Nothing herein shall preclude an employee from making voluntary political contributions in conjunction with his/her fair share payment.” Ill. Rev. Stat. 1987, ch. 48, par. 1603(g).

In determining the effect of ambiguous statutory language, courts may consider the legislative history of the statute which contains the ambiguous language. (People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) Generally, an amendment of statutory language is presumed to change the effect of the legislation as it existed prior to the amendment. (See Weast Construction Co. v. Industrial Comm’n (1984), 102 Ill. 2d 337, 466 N.E.2d 215.) Also, where the language of a particular statute is not clear, it is proper to compare that statute to statutes concerning related subjects in order to discern its meaning. (Bergin v. Board of Trustees of the Teachers’ Retirement System (1964), 31 Ill. 2d 566, 202 N.E.2d 489.) When the language of section 11, the legislative history of section 11, and the language of the related portion of the IPLRA are considered in view of the above principles, it becomes apparent the interpretation of section 11 which the IELRB adopted in this case is correct.

The exchange between Senators DeMuzio and Bruce which we have quoted indicates Senator Bruce understood (1) only objectors are entitled to rebates of the portions of their fair share fees attributable to expenditures unrelated to collective bargaining, and (2) amounts attributable to expenditures unrelated to collective bargaining are normally included in the fair share fees charged nonmembers of unions by their exclusive bargaining representatives. Furthermore, the failure of the legislature to include in section 11 of the IELRA the very specific limitations on the types of expenditures on which fair share fees may be premised, which are found in the comparable portion of the IPLRA, and in the version of the IELRA which was initially passed by the legislature, suggests a very broad range of activities may form the basis for the fair share fees withheld from nonmembers’ pay pursuant to the IELRA.

Nothing in the record indicates the filing of objections pursuant to the procedures prescribed by the IELRB is an undue burden on persons who object to fair share fees. It appears that under the IELRB rules, the filing of an objection involves nothing more than the completion of a rather simple form and its submission to the IELRB. (See 80 Ill. Adm. Code §1125.30 (Supp. Jan. 1, 1986).) We conclude an objection procedure such as this does not unduly burden the payers of fair share fees in the exercise of their constitutional rights.

For all of the above reasons, we hold educational employees who are obligated to pay fair share fees may properly be required to follow the IELRB’s objection procedures in order to contest the amount of their fair share fees. Because we conclude the IELRB’s decision is fully supported by Illinois statutory and case law, and is not contrary to principles of Federal constitutional law, we need not specifically discuss the Federal decisions dealing with fair share fees upon which the IELRB relied in its order.

The decision of the Illinois Educational Labor Relations Board is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY WAYNE NASH, Defendant-Appellant.
    Fourth District
    No. 4—88—0291
    Opinion filed May 25, 1989.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

This case comes on appeal from the circuit court of Champaign County. Defendant was convicted of indecent solicitation of a child, ordered to pay restitution, and reimburse the county for the cost of his appointed defense attorney. Defendant appeals his conviction and the orders of restitution and recoupment.

The defendant Wayne Nash was charged by indictment on November 19, 1987, with the offense of attempt (aggravated criminal sexual abuse). On January 7, 1988, he was charged by information with indecent solicitation of a child. On November 24, 1987, at the arraignment of defendant, the presiding judge entered a reimbursement order requiring defendant to reimburse the county for $1,000 in monthly installments of $25 for the costs of providing court-appointed representation.

On January 11, 1988, defendant’s motion to dismiss the attempt charge was denied. On February 17, 1988, defense counsel, arguing that the indecent solicitation statute violated the separation of powers doctrine and was unconstitutionally vague, filed a motion to dismiss this charge. This motion was dismissed immediately prior to the bench trial. At trial, the parties entered into a stipulation. The stipulation was to the effect that the defendant, while a custodian in an elementary school, on October 22, 1987, prepared a note and placed it inside the desk of a 10-year-old student. The note read as follows:

“Hi Jessika!
I like you. You are real nice.
May I see you nakedl Please?! You can see me naked, too, if you like — OK?
I won’t hurt you. We will just look and touch — OK? Please say yes. It will feel good and nobody will know. OK? Please answer. I like you!
A BOY”

The State rested following the presentation of the stipulation, and the court granted defense counsel’s motion for a directed verdict on the attempt charge but denied a directed verdict on the indecent solicitation charge. Defendant then testified that although he wrote the note he had no intention of engaging in the activity described in it. The court found defendant guilty of indecent solicitation of a child.

The court sentenced defendant to a jail term of 80 days and a probationary term of 30 months. In addition, the court ordered that the remainder of defendant’s bond, approximately $300, be applied to restitution to the victim and defendant be responsible for additional restitution not to exceed $1,500. The court then affirmed the previous order requiring defendant to reimburse the county for $1,000 for his representation by court-appointed counsel.

We first consider the State’s motion to supplement the record on appeal by adding an amended certificate of probation dated November 7, 1988, and filed November 28, 1988. The State filed this motion pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329), which provides a mechanism by which parties may supply omissions, correct errors, and settle disputes about whether the record on appeal accurately reflects what occurred at trial. This rule has been construed to authorize supplementation of the record only with documents that were actually before the trial court. Johnson v. Matviuw (1988), 176 Ill. App. 3d 907, 531 N.E.2d 970.

The amended certificate provides that defendant will make a restitution payment of $123 to the county clerk as reimbursement for the victim’s counseling within the first 12 months of probation. The amended certificate is germane to the issue of whether the trial court entered restitution in a fixed amount, and defendant has not objected to the supplementation. For this reason we grant the motion to supplement.

Defendant argues that section 11 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 6) fails to give adequate notice of the conduct which it seeks to prohibit. The section provides:

“Indecent solicitation of a child, (a) Any person of the age of 17 years and upwards who solicits a child under the age of 13 to do any act, which if done would be aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse, commits indecent solicitation of a child.
(b) It shall not be a defense to indecent solicitation of a child that the accused reasonably believed the child to be of the age of 13 and upwards.
(c) Sentence.
Indecent solicitation of a child is:
(1) a Class A misdemeanor when the act, if done, would be criminal sexual abuse;
(2) a Class 4 felony when the act, if done, would be criminal sexual assault, aggravated criminal sexual assault, or aggravated criminal sexual abuse.” Ill. Rev. Stat. 1987, ch. 38, par. 11-6.

. Defendant contends that when this section is considered in relation to the definition of “solicit” contained in section 2 — 20, the result is unconstitutionally vague. “ ‘Solicit’ or ‘solicitation’ means to command, authorize, urge, incite, request, or advise another to commit an offense.” Ill. Rev. Stat. 1987, ch. 38, par. 2 — 20.

Defendant contends that, read together, the statute and the definition would lead a reader of common intelligence to believe the statute proscribed only the act of soliciting a child to become the perpetrator of one of the enumerated crimes. Alternatively, he argues it creates confusion by allowing the State to charge a defendant whether the child is solicited to be the victim or the perpetrator of the underlying sex offense.

Defendant’s dilemma is largely illusory. Common sense dictates that a statute which deals with sex crimes against children would not deal with the children as perpetrators only and leave them unprotected as victims. The language of the statute clearly focuses on the nature of the act itself, not the roles of the perpetrator and victim (in defining the offense). Even if, as defendant contends, the language of the statutory section when literally applied would not prohibit defendant’s act. Section 2 — .5 of the Criminal Code of 1961 provides: “For the purposes of this Code, the words and phrases described in this Article have the meanings designated in this Article, except when a particular context clearly requires a different meaning.” (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 5.) The case before this court on appeal is such a circumstance. The committee comments to section 11 — 6 state:

“Section 11 — 6 completes the trio of provisions aimed at adult-child sexual crimes. It proscribes a narrow class of acts— the invitation or solicitation of a child to engage in some sexual act condemned in either of the two preceding sections. It is intended to cover cases which fall short of coverage by the attempt provisions.” Ill. Ann. Stat., ch. 38, par. 11 — 6, Committee Comments, at 291 (Smith-Hurd 1979).

The committee comments make plain two things. First, the intent of the statute is to prevent any adult-child sexual crimes. Second, the comment indicates the statute is intended to stop any enticement or encouragement of children into an illicit sexual act. It does so not only by the use of the word “solicitation” but also “invitation,” clearly indicating that any type of encouragement is forbidden under this statute.

As for defendant’s argument the statute as written can be read to allow prosecutors to file charges whether the child in question is a victim or a perpetrator, defendant is avoiding the point of the statute. The crime in question here is solicitation. It is inconsequential whether the child is solicited to assume the role of the perpetrator or the victim. The State has a strong legitimate interest in protecting children from any kind of solicitation no matter what the nature of the sex act or the role the child is to assume.

Defendant has also argued the prosecutor in an indecent solicitation action has unbridled discretion to charge a defendant under section 11 — 6(c)(1), a Class A misdemeanor, or under section 11 — 6(cX2), a Class 4 felony, depending on the seriousness of the underlying crime. Specifically, defendant points out subsection (1) involves criminal sexual abuse and subsection (2) involves aggravated criminal sexual abuse. Since the age requirements to be charged under section 11 — 6 are considered an aggravating element of criminal sexual abuse, defendant has argued this allows the prosecutor too great a discretion in whether he chooses to charge the crime as a misdemeanor or a felony.

First, it is difficult to see how defendant is harmed by the situation in which he finds himself. Since the ages of the perpetrator (over 17) and the victim (under 13) are both elements of solicitation and elements of aggravation for criminal sexual abuse, it appears that solicitation involving criminal sexual abuse is always aggravated and can always be charged as a felony. When any discretion is involved it can only be to the benefit of the defendant, since the exercise of prosecutorial discretion is not to raise a misdemeanor to a felony but rather to reduce a felony to a misdemeanor. Furthermore, defendant has not cited any authority to show that such an exercise of discretion is improper when given to the prosecutor.

The State’s Attorney has always enjoyed a wide discretion in both the initiation and the management of criminal litigation. That discretion includes the decision whether to initiate any prosecution at all as well as to choose which of several charges shall be brought. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809.) The State is permitted to prosecute a defendant for two separate offenses with two different penalties based on the same conduct. The State’s Attorney as the representative of the people is vested with discretion to evaluate evidence and other pertinent factors in determining which offenses properly should and can be charged. It is not a violation of due process for the State’s Attorney to possess a certain amount of discretion. People v. Sephus (1986), 150 Ill. App. 3d 272, 501 N.E.2d 175.

In this situation, the degree of solicitation charged, felony or misdemeanor, depends on the prosecutor’s designation of what the underlying crime, if completed, would have been charged as. Since the prosecutor clearly has that discretion in regard to the crimes themselves, that is, he has the discretion to decide whether to charge criminal sexual abuse or aggravated criminal sexual abuse, it only naturally follows that he has similar discretion when making a decision to file charges under the solicitation statute.

Defendant next complains the court’s order of restitution was improperly made. The court’s original sentencing order of April 18, 1988, provided defendant would be responsible for the cost of any counseling the victim and her family might require. Three hundred dollars of defendant’s bond was set aside for this purpose, and defendant was to be liable for another $1,500 if required. Payment was to be coordinated by the Court Services Department. On November 7, 1988, in the amended certificate of probation, the court ordered defendant to pay the sum of $123 within the first 12 months of probation.

This court has previously dealt with restitution orders in People v. White (1986), 146 Ill. App. 3d 998, 497 N.E.2d 888. There the trial court had entered an order which was subject to increase at a later date, which required further hearings to fix the exact amount of restitution and to make a determination of defendant’s ability to pay. Consequently, this court held the order did not fix a clear and definite sentence which would not require further judicial action prior to enforcement. As such it was contrary to the requirements of the restitution statute. Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—6.

We do not find the order here suffers from the same infirmities as did the order in White. The court here fixed the limit of defendant’s restitution, and this could not be increased. The order was certain enough that it could be enforced without further judicial action. Additionally, the court at a later date entered its amended order of probation. We believe this effectively fixed defendant’s liability to his victim at $123. We find it does not allow for any further payment to the victim, and defendant is entitled to the difference between this amount and the $300 withheld from his cash bond. The amended certificate of probation also answers defendant’s arguments concerning the failure of the court to establish a definite time of payment and the basis on which the amount of payment is determined. The amended certificate states payment shall take place within one year of the start of probation. The amount of restitution is based on the actual expenses the victim incurred in counseling and the statement from the hospital where counseling took place has been admitted to the record.

As a final issue, defendant questions the court’s order of recoupment to the county for legal services provided to defendant by court-appointed counsel. Section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1) provides for the reimbursement of the county by an indigent defendant for legal costs incurred by the county in the course of providing legal defense to the defendant. In this case, the court ordered defendant to pay $1,000 to reimburse the county for his legal fees.

This court has held that section 113 — 3.1 of the Code of Criminal Procedure of 1963 authorizes a court to order a defendant to pay the county a reasonable sum for his court-appointed counsel. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1; People v. Terry (1988), 170 Ill. App. 3d 484, 524 N.E.2d 685.) Section 113 — 3.1 requires the court to consider the defendant’s financial affidavit and any other information the parties wish to present. In Terry, this court vacated and remanded the recoupment order because the court did not indicate it had considered the defendant’s financial affidavit in conjunction with the reasonableness of the costs the defendant was being ordered to pay. In People v. Brady (1988), 172 Ill. App. 3d 1079, 527 N.E.2d 590, this court again vacated and remanded a recoupment order where the record showed the court’s determination of the defendant’s ability to pay was based solely on the bond posted.

In this case, the order of recoupment was made on November 24, 1987, the day defendant was arraigned. At that time, the defendant and others charged with crimes were present in court for arraignment. The presiding judge informed those defendants who had a public defender appointed that they would be subject to a $1,000 order of recoupment to be paid at the rate of $25 per month and entered an order as to each individual. The trial court did not indicate it considered the statutory factors, and in effect entered a blanket order as to all the defendants present.

At the sentencing hearing on April 18, 1988, the trial court indicated it had this defendant’s affidavit before it and had considered defendant’s financial resources. The public defender stated his office had provided about 10 hours of service to defendant. Defendant did not object or offer any further evidence to the court. The court then affirmed the earlier order of recoupment.

While in the past we have declined to apply the waiver rule in recoupment cases, we have not always done so. (E.g., People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.) When we have declined to apply waiver by a defendant, we have clearly indicated we did so as an exercise of our discretion. It is solely within the discretion of the reviewing court to consider alleged errors not raised or presented at trial, even if such, errors affected substantial rights. People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.

We will apply the waiver rule here. After the initial recoupment order was entered, defendant had a second recoupment hearing after sentencing. The court indicated that it had before it the defendant’s financial affidavit and other relevant information. The defendant did not object to the order or accept the court’s invitation to present any additional evidence. Section 113 — 3.1 clearly places the burden on the parties to come forward with any evidence they wish to have considered by the court. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1.) In this case, where the court specifically inquired of defendant if there was anything else he wanted the court to consider and he replied there was nothing, defendant was given every opportunity to state his case and did not do so. For this reason we do not feel compelled to give defendant a second chance to argue here what he should have presented at trial and hold that it is waived.

Even had defendant not waived this issue, he would have failed on the merits. Section 113 — 3.1 as to the hearing provides in part:

“Such hearing shall be conducted on the court’s own motion or on motion of the State’s Attorney at any time after the appointment of counsel but no later than 90 days after the entry of a final order disposing of the case at the trial level.” (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).)

Here, not only was reimbursement set at the time of arraignment, it was also heard at the time of sentencing, in effect allowing defendant two opportunities to object.

This is not a case like Terry (170 Ill. App. 3d 484, 524 N.E.2d 685), where the court did not indicate it had considered defendant’s affidavit. Here the court stated it had before it the defendant’s affidavit and other relevant information. Unlike Brady (172 Ill. App. 3d 1079, 527 N.E.2d 590), the court here had a reasonably complete picture of the defendant’s financial situation and defendant was employed at the time of the hearing. On this basis it found the defendant was capable of paying $25 a month towards the recoupment order.

The court in this case complied with the statutory requirements of section 113 — 3.1. These are (1) the court have the defendant’s financial affidavit before it, and (2) it consider any evidence the parties may submit. In Terry, this court held that a court must strictly comply with the statutory requirements and make a record that it has done so. (Terry, 170 Ill. App. 3d at 489, 524 N.E.2d at 689.) Here the record shows the court considered the affidavit and other relevant information and the defendant declined to offer any additional information. The court therefore complied with the statute.

In Terry, this court also held the court’s order must be reasonable in amount and that reasonableness was to be determined under section 113 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3(c)). (Terry, 170 Ill. App. 3d at 488, 524 N.E.2d at 688.) This court listed the factors to be considered in determining reasonableness: the affidavit and financial circumstances of the defendant, the time spent representing the defendant, the nature of the service, the expenses reasonably incurred, and the statutory limitations. In this case, the record indicates the court considered the affidavit and financial circumstances of the defendant, the time spent representing the defendant, and the nature of the representation. Though the record does not indicate the court had considered all possible factors, it did substantially comply with the requirements of Terry. Nothing in our previous opinions requires strict compliance and the creation of a complete record as to the issue of reasonableness. Substantial compliance is sufficient. This is in contrast to the requirements of section 113 — 3.1, which, as discussed above, require strict compliance and the creation of a record the court considered the financial affidavit and any other information the parties submitted to the court.

For the reason that defendant has waived his argument on recoupment and the other reasons discussed above, we affirm the decision of the circuit court.

Affirmed.

KNECHT and SPITZ, JJ., concur.


author: JUSTICE LUND

text:
    CHARLES J. AUTHENREITH, Plaintiff-Appellee, v. JAY M. WATTS, Defendant-Appellant.
    Fourth District
    No. 4—88—0818
    Opinion filed May 25, 1989.

      Jay M. Watts, of Decatur, appellant pro se.

    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On October 25, 1988, the circuit court of Coles County entered judgment against defendant Jay M. Watts and in favor of plaintiff Charles J. Authenreith, Coles County circuit clerk, in the amount of $108 for past-due child support collection fees. Defendant appeals. We affirm.

Defendant was divorced in 1982, and he was ordered to pay child support through the Coles County circuit clerk’s office. In 1985, the legislature enacted legislation authorizing collection of fees to cover the circuit clerk’s costs in collecting child support payments. (Pub. Act 84 — 860, eff. Jan. 1, 1986 (1985 Ill. Laws 5370).) This act affected changes in section 27.1 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1987, ch. 25, par. 27.1), and section 705 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 705). Section 27.1 now reads, in relevant part:

“In maintenance and child support matters, the Clerk may deduct from each payment an amount equal to the United States postage to be used in mailing the maintenance or child support check to the recipient. In such cases, the Clerk, may, if authorized by ordinance of the county board, collect an annual fee of up to $36 from the person making such payment for administering the collection and distribution of maintenance and child support payments.” (Ill. Rev. Stat. 1987, ch. 25, par. 27.1(u)(3).)

The relevant portion of section 705 reads:

“In any action filed in a county with a population of 1,000,000 or less, the court shall assess against the respondent in any order of maintenance or child support any sum up to $36 annually authorized by ordinance of the county board to be collected by the clerk of the court as costs for administering the collection and disbursement of maintenance and child support payments. Such sum shall be in addition to and separate from amounts ordered to be paid as maintenance or child support.” Ill. Rev. Stat. 1987, ch. 40, par. 705(6).

In 1986, the Coles County board authorized collection of $36 per year for this purpose. The circuit judges also entered an administrative order directing the clerk to notify those paying child support of the fee, and to take steps to collect it. Upon notification, defendant refused to pay the fee without a court order being entered in his divorce case. The clerk eventually filed suit to collect the fees for 1986, 1987, and 1988, and the present judgment was entered.

Defendant maintains that section 27.1(u)(3) and section 705(6) should be read together, and that the requirement contained in section 705(6) that the court enter an order directing payment of the $36 is also controlling to section 27.1(u)(3). Accordingly, he insists that without a court order entered in his specific case directing him to pay the fee, he is not required to do so. The trial court found section 27.1(u)(3) controlling. It concluded section 705(6) was directive to the court in future cases, and served to reinforce the collection process, but did not affect the authority of the clerk to collect the fees pursuant to section 27.1(u)(3). We agree with this analysis.

The cardinal rule in statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) In determining the legislative intent, courts should first consider the statutory language. (Boykin, 94 Ill. 2d at 141, 445 N.E.2d at 1175.) If that language is clear, it will be given effect without resort to other aids of construction. (People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674, 677.) Also, statutes should be construed so that language contained therein is not rendered meaningless or superfluous. People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200, 203.

The obvious intent of the enacted legislation is to alleviate the costs to the counties of the required collection of child support and maintenance payments by assessing a fee on those parties who make these payments. To this end, section 27.1(uX3) .provides that all parties making these payments shall pay this fee when it is authorized by the respective county board. It is also evident that this fee is to go into effect without any required court action, as it is contained in section 27.1. This section sets forth over 50 different fees the circuit clerk is to collect, without the necessity of a court order, for providing various services.

It is equally apparent section 705(6) is not intended to limit the collection of these fees by the clerk. Rather, the section is intended as a directive for the trial courts, requiring they order the responsible parties in subsequent proceedings to pay the fee.

Defendant maintains to so hold makes the language in section 705(6) mere surplusage, since section 27.1(uX3) already authorizes collection of the fee. However, defendant misapprehends the purposes of section 705(6). Those purposes are to assist in enforcement of the collection of the fee by making parties aware of the fee at the time the support or maintenance order is entered, and by providing collection through enforcement of court order, rather than by separate actions.

For the above-mentioned reasons, the judgment of the circuit court of Coles County is affirmed.

Affirmed.

McCULLOUGH, P.J., and KNECHT, J., concur.


author: JUSTICE GREEN

text:
    DELORES E. IDLEMAN et al., Plaintiffs-Appellants, v. REATHA I. RAYMER et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0725
    Opinion filed May 25, 1989.

      Dale A. Cini, of Ryan, Cini & Bennett, of Mattoon, and Bobby F. Sanders, of Toledo, for appellants.
    David Y. Eberspacher, of Harlan Heller, Ltd., of Mattoon, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On November 24, 1984, plaintiffs Delores E. Idleman, Joann Boley, and Carol Van Scyoc, executor of the estate of Lela Van Scyoc, deceased, brought suit in the circuit court of Cumberland County against defendants Reatha I. and Roy G. Raymer seeking to set aside a deed dated August 14, 1976, by which Wesley Miller, deceased, had conveyed to defendants, who were wife and husband, an interest with him as joint tenants in his only real estate, a 200-acre tract of farmland. Plaintiffs Carol Van Scyoc, Delores Idleman, and Joann Boley and defendant Reatha I. Raymer were the only children of Wesley Miller. Under the terms of his will, executed August 10, 1974, which had been admitted to probate, defendant Reatha I. Raymer would have received a two-fifths interest in the tract, and the other three daughters would each have taken a one-fifth share. Plaintiffs contended the conveyance had been obtained by defendants in breach of their fiduciary relationship with Miller.

After a bench trial, the court entered an order on September 6, 1988, finding in favor of defendants. Plaintiffs have appealed, contending: (1) the decision was contrary to the manifest weight of the evidence; and (2) the court erred in evidentiary rulings, the most serious of which concerned the application of the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201). We conclude the evidence supported the court’s decision, and no reversible error resulted from the court’s evidentiary rulings. Thus, we affirm.

The following facts were not seriously disputed. Wesley Miller died on July 30, 1984, less than one month short of his 82nd birthday. His wife had predeceased him some 10 years earlier. Forty days after her death he executed his previously described will. Prior to the execution of the deed which is the subject matter of this suit, Miller had granted Reatha Raymer his general power of attorney on March 12, 1975. Defendants lived in a two-bedroom home which was about two miles from the Miller farmland. Apparently, when Miller’s wife died, defendants converted an enclosed porch in their home into a bedroom with stool and lavatory for Miller, and he came to live with them. Defendant Roy Raymer farmed the 200-acre tract during the time Miller lived with defendants. Reatha Raymer cared for her father, gave him insulin shots, kept him clean and, on occasion, took him to see his physician. Defendants do not dispute a fiduciary relationship between Miller and defendants existed at the time of the conveyance. This situation was further complicated because the same firm of attorneys who drafted Miller’s will and the deed setting up the joint tenancy also represented defendants.

Although plaintiffs do not contend Miller lacked capacity to make the questioned deed, Miller’s mental condition bears upon his susceptibility to influence which might have been imposed upon him through use of the fiduciary relationship. Miller’s physician testified that, at the time of execution of the deed, Miller did suffer from diabetes and early evidence of Parkinson’s disease, but his mind was then sound. However, by 1978, Miller had been hospitalized for a progressive disease which would eventually cause memory loss. The notes of Miller’s physician indicated the physician considered Miller had exhibited poor judgment for the previous five to six years, a period of time starting long before the execution of the deed. The physician’s notes also indicated Miller had been hospitalized twice in 1975 and had shown some deterioration of his ability to think during this period of time. Nevertheless, the physician stated a definite opinion Miller was capable of transacting business at the time the deed was executed. Miller’s banker also testified to Miller’s competency when the deed was executed. Various other persons who had a relationship with defendants, such as would likely make them feel favorably toward defendants, also testified Miller appeared competent in 1976.

Some of the same witnesses who testified as to Miller’s competency also testified Miller had spoken to them indicating much gratitude for what defendants had done for him. One such witness, whom Miller had visited in Florida in December 1976, testified Miller told her he was giving defendants and their daughter all of his property because only they had treated him properly. The widow of the deceased lawyer who had drafted the papers effectuating the joint tenancy between Miller and defendants testified she shared an office with her husband at that time and was present during various visits concerning the transaction. She stated Miller came to the office and told them he wanted to make a deed to defendants because of their kindness to him. According to the witness, her husband reminded Miller he had other children, but Miller said he wanted defendants to have the property and had agreed with them that they could have the property as a reward for caring for him in the past and continuing to do so in the future. This witness further testified her husband made Miller think about the transaction and return several times before consummating the transaction. The witness admitted her son was attorney for defendant Roy Raymer.

Plaintiffs’ evidence indicated defendants had been secretive about the transaction setting up the joint tenancy. Testimony of plaintiffs Delores Idleman and Joann Boley that the execution of the deed was never disclosed to them until after their father’s death was not refuted by defendants. Financial statements given by defendant Roy Raymer to his bank appeared to fail to indicate defendants claimed any interest in the 200 acres beyond his rights as a tenant. Plaintiffs also point out defendant Reatha Raymer was named as executor in Miller’s will, and defendant Roy Raymer shared a lock box with Miller, but they did not present his will for probate until four months after his death.

Based upon the evidence presented, we do not find the decision of the circuit court to be contrary to the manifest weight of the evidence. In reaching that decision, the court properly applied the formula set forth in Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872. Defendants do not dispute that the existence of the fiduciary relationship between them and Miller gave rise to a presumption that the transaction in which they obtained the joint interest in the 200-acre tract was fraudulent. The Franciscan Sisters court held that such a presumption was subject to the Thayer “bursting bubble” theory. Under this rule, once the existence of the presumption is established, the burden of going forward is on the party against whom the presumption operates to produce evidence to negate the presumption. If that is done, the presumption ceases to exist, and the proponent of the theory of fraud has the burden of proving the fraud.

The most difficult aspect of the operation of the “bursting bubble” theory of presumptions in civil cases is the question of the quantum of evidence necessary to negate the presumption. The Franciscan Sisters opinion stated that, because there is no “fixed rule,” at times the amount of evidence necessary may be small but at other times it may be “substantial.” (Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877. ) Because the alleged perpetrator of the fraud there was a lawyer and the alleged victim a client, that court held under those circumstances the presumption could only be rebutted by evidence which was “clear and convincing.” (Franciscan Sisters, 95 Ill. 2d at 465, 448 N.E.2d at 878.) Here, the circuit court applied the “clear and convincing” standard and found the presumption had been rebutted.

The instant defendants were not lawyers. Plaintiffs note that in Lamb v. Lamb (1984), 124 Ill. App. 3d 687, 694, 464 N.E.2d 873, 878, this court stated Franciscan Sisters seemed to indicate the clear and convincing standard was also applicable when the alleged perpetrator of the fraud was not a lawyer. Plaintiffs also point out that in this case the law firm involved in the questioned transaction had represented both Miller and the defendants. We need not decide the quantum of proof necessary in these circumstances, for the circuit court here applied the clear and convincing standard, which is the highest proof required in a civil case. The determination of whether the presumption had been rebutted was a factual determination which we, as a court of review, can overturn only if the determination is contrary to the manifest weight of the evidence. Klaskin v. Klepak (1989), 126 Ill. 2d 376, 396, 534 N.E.2d 971, 979.

Substantial evidence supports the circuit court’s decision that the presumption of fraud had been rebutted. Miller had made a will, shortly after his wife’s death in 1974, which gave three-fifths of the 200-acre tract to his other daughters. However, that will was drafted approximately the time he moved in with defendants. The transaction in dispute occurred two years later. All of the evidence indicates the defendants had treated him well. He was likely grateful to defendants, and various testimony indicates this was so. Some other testimony indicated he felt his other daughters had not treated him as well. The wife of the lawyer who drafted the deed creating the joint tenancy testified to being present during several conferences between Miller and her husband concerning that transaction. Her testimony indicated defendant entered into the transaction only after due deliberation. Miller’s physician testified Miller was capable of transacting business at that time. This opinion was corroborated by the testimony of lay witnesses. While most of the witnesses who testified to the foregoing matters were persons likely to be biased in favor of defendants, the extent to which that lessened the weight to be given their testimony was for the trial court, sitting as the trier of fact, to determine.

Plaintiffs call our attention to the evidence of Miller’s limited education, lack of having done much reading, failing health and sporadic mental confusion near the time of the questioned transaction. However, these were all factors for the trier of fact to weigh against the evidence favorable to defendants. Plaintiffs also express concern because the firm representing Miller had also represented defendants. While this may bear upon the strength of the fiduciary relationship and the strength of the evidence necessary to rebut the presumption of fraud, that evidence is not conclusive if Miller’s entry into the transaction was a free, voluntary, and understanding act. Likewise, defendants’ attempts to hide the fact the joint tenancy had been set up are, at most, an indication they had some feelings of guilt in regard to the transaction. The main issue is the mental state of Miller at the time the joint tenancy was set up and not the mental state of the defendants.

The circuit court’s determination that the presumption of fraud had been rebutted was not contrary to the manifest weight of the evidence. The evidence on that issue was also strong enough to support the ultimate decision of the court to refuse to set aside the conveyance to defendants. That decision was also not contrary to the manifest weight of the evidence.

We now turn to the circuit court’s rulings on evidence. As indicated, we deem the most important question raised in this regard to concern portions of the testimony of defendant Reatha Raymer offered by the defense and admitted over the objection of plaintiffs upon the grounds the testimony violated the Dead Man’s Act.

The Dead Man’s Act is contained in article VIII, part 2 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 201). Section 8 — 201 of the Dead Man’s Act provides that, in any civil action in which a party is suing or defending as “the representative of a deceased person,” no “adverse party or person directly interested” in the suit can properly “testify on his or her own behalf” to any conversation with the deceased or any event occurring in the presence of the deceased. (Ill. Rev. Stat. 1987, ch. 110, par. 8—201.) Section 8 — 201 further defines the term “[rjepresentative” to include heirs or legatees but makes no express statement that persons, such as plaintiffs here who are devisees, are included within the definition of a representative. This could be significant here because, although plaintiffs are both heirs and devisees, the record does not indicate Miller’s will has been set aside. Thus, plaintiffs are suing as devisees.

Prior to the incorporation of the provisions of the Dead Man’s Act into the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201), similar legislation existed in “An Act in regard to evidence and depositions,” section 2 of which indicated devisees together with heirs, legatees and certain others, came within the definition of a “[Representative.” (Ill. Rev. Stat. 1981, ch. 51, par. 2.) We conclude the word “devisee” was left out of section 8 — 201 of the Code by oversight. This would conform to the authoritative textual statement that a devisee of the decedent is included within the prohibitions of the Dead Man’s Act. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §606.5, at 306 (4th ed. 1984).

Defendants do not dispute that plaintiffs qualify as representatives. Rather, they contend the questioned testimony came within the exception set forth in section 8 — 201(a) of the Dead Man’s Act, which states:

“If any person testifies on behalf of the representative to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 201(a).)

Plaintiffs’ brief lists the places in the report of proceedings where testimony of Reatha Raymer was admitted over objections based on the Dead Man’s Act. The vast majority of this testimony concerns taking her father to see his physician. The physician’s testimony was before the court because plaintiffs had introduced into evidence an evidence deposition containing the physician’s testimony. This deposition had been taken by defendants. However, by offering it into evidence, plaintiffs made the physician their witness and, to the extent Reatha Raymer’s testimony concerned a conversation or event about which the physician testified, the exception of section 8 — 201(a) made her testimony admissible.

Reatha Raymer was permitted to testify that, when she took her father to see his physician on July 17, 1976, he asked the physician as to whether “he was capable of making papers,” and the physician responded by saying “yes.” The physician had merely testified this visit occurred. If this testimony by the physician of the happening of the event of the visit was not sufficient to permit the recitation of the conversation during the event, any error was not reversible. The physician himself had testified he deemed Miller to have been competent to transact business at that time. Reatha Raymer was also permitted, over objection, to testify in regard to her father’s capacity to read and make phone calls. However, several plaintiffs had also testified in regard to the father’s capacities in these respects.

Hearsay objections were properly overruled regarding testimony of various defense witnesses as to conversations they had with Miller. Very little of the testimony was offered to prove the truth of the matters asserted. Accordingly, no hearsay issue was involved. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §801.1, at 504 (4th ed. 1984).) A possible exception to the foregoing was the testimony of several witnesses who described how Miller told them, in various ways, that he had or would make arrangements concerning his property to favor his daughter Reatha. As evidence was also introduced in regard to the transaction whereby defendants became joint tenants with Miller as to the 200-acre tract, this evidence tended to show Miller knew what he was doing and, to the extent the evidence was hearsay, it was an admission against his economic interest because his economic interest would have been served by having the conveyance set aside.

As we have indicated, we affirm.

Affirmed.

LUND and KNECHT, JJ., concur.


text:
    AMERICAN SAVINGS BANK, Plaintiff-Appellee, v. RAY A. ROBISON et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0743
    Opinion filed May 25, 1989.

      Ray A. Robison and Lannie A. Robison, both of Chrisman, appellants pro se.

    Miller & Ruiten, of Springfield, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

The defendants Ray A. Robison and Lannie A. Robison appeal from a judgment of the circuit court of Sangamon County entered in favor of the plaintiff and against the defendants in the amount of $4,900 and attorney fees in the amount of $400. The issues presented for review are: (1) whether the defendants were entitled to receive notice to the buyer remedies upon default as provided in section 20 of the Motor Vehicle Retail Installment Sales Act (Ill. Rev. Stat. 1987, ch. 1211/2, par. 580); (2) whether the failure of Mr. Ron Loveall, as agent of the plaintiff, to be present at the trial deprived the defendants of their right to cross-examine and confront a witness; and (3) the failure of the plaintiff to grant an extension or renewal of an unpaid balance as provided in section 19 (Ill. Rev. Stat. 1987, ch. 1211/2, par. 579) violates the provisions of that statute.

Before proceeding with the merits of the appeal, it is necessary to discuss the provisions of Supreme Court Rule 323 (107 Ill. 2d R. 323). Subsection (c) provides that if no verbatim transcript of the evidence of proceedings is obtainable, the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. (107 Ill. 2d R. 323(c).) Subsection (d) provides that the parties, by written stipulation, may agree upon a statement of facts material to the controversy and file it without certification in lieu of and within the time for filing a report of proceedings. (107 Ill. 2d R. 323(d).) No verbatim transcript of the evidence of the proceedings was available. The appellant did not prepare a proposed report of proceedings, and the parties did not by written stipulation agree upon a statement of facts material to the controversy and file it within the time for filing a report of proceedings.

As stated in Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, 584-85, 498 N.E.2d 246, 248:

“It is appellant’s duty to present a complete record on appeal so that the reviewing court is fully informed regarding issues to be resolved. [Citations.] Absent an adequate record on appeal, it is presumed that the trial court’s judgment conforms to the law and has a sufficient factual basis.”

Only the judge’s docket entries of September 14, 1988, and September 23, 1988, reveal the basis for the judgment of the court. The entry of September 14,1988, states:

“Cause called for trial witnesses sworn, evidence heard Judgment for plaintiff for $4,900 plus costs against both defendants plus attorney fees.”

And the entry of September 23,1988, states:

“Judgment entered for attorneys fees $400.”

It could be argued that the statement of facts set forth in the appellant’s brief is sufficient to bring the issues to the attention of this court. This is because the plaintiff in its appellee’s brief “adopts verbatim, the defendant-appellant’s statement of facts, with exhibits and same as reprinted below.” A statement of facts, however, in an appellant’s brief is not sufficient to bring this matter to the attention of the reviewing court as to what transpired and what evidence was presented to the trier of fact.

“Assertions of the evidence in an appellant’s brief, as are contained here, cannot serve as a substitute for a report of proceedings in compliance with Supreme Court Rule 323.” (Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 661, 435 N.E.2d 852, 860.)

Further support for our decision is also found in People v. Bruhn (1977), 51 Ill. App. 3d 269, 271, 366 N.E.2d 932, 934:

“[C]ounsel for both parties filed in this court a stipulation that the report of proceedings on the post-trial motions be ‘certified to the record’ in this appeal and that it ‘serve as the Report of Proceedings in the trial’ ***.
In our opinion, a stipulation of the parties cannot transmute this post-trial report into an accurate and acceptable report of proceedings at trial. Neglect or failure to comply with the applicable rules cannot be cured by the statements in a post-trial motion nor in a motion for judgment notwithstanding the verdict or by statements in the briefs which are alleged to constitute admissions of fact.”

In the absence of a verbatim transcript or other report of proceedings, the statement of facts contained in the defendant’s brief falls outside the record, does not comply with Supreme Court Rule 323, and may not be considered on appeal under that rule. The time for filing the report of proceedings had long passed at the time the defendant filed his brief.

As stated in Belcher v. Spillman (1975), 28 Ill. App. 3d 973, 975, 329 N.E.2d 550, 552:

“[Wjhere the record does not disclose all of the evidence to the reviewing court, we are required to assume that the evidence heard by the trial court is sufficient to support the judgment.”

Because there is no report of proceedings nor compliance with Supreme Court Rule 323, a review of the correctness of the trial court’s judgment will not be made.

The judgment of the trial court is affirmed.

Affirmed.

KNECHT and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS M. BURROWS, JR., Defendant-Appellant.
    Fourth District
    No. 4—88—0473
    Opinion filed May 25, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On November 23, 1987, a criminal information was filed in the circuit court for Douglas County against the defendant Carlos M. Burrows. After a jury trial, the defendant was found guilty on January 29, 1988. The trial court denied the defendant’s post-trial motions and ordered the defendant’s bond to be applied to reimbursing the county for legal services furnished by the public defender. The defendant was sentenced on June 22, 1988. Defendant argues on appeal the State failed to prove the defendant guilty beyond a reasonable doubt and erred in ordering reimbursement to the county for legal services. We disagree and affirm the circuit court.

The testimony at trial showed Melba Johnson and Vera Long were the caretakers of their mother’s unoccupied home while she resided at a local nursing home. Johnson testified she checked the residence on the morning of October 28, 1987, and found nothing unusual. When Long arrived on October 31, 1987, however, she found the house in disarray and many items missing. Johnson and Long identified items recovered from the defendant’s family home as some of those missing items. These included sewing items, antique dolls, and a suitcase.

Rick Hossler, husband of a separately tried codefendant, Patti Hossler, testified for the prosecution. He stated he returned home from work on the morning of October 29, 1987. Present in the home were Patti, the defendant, the defendant’s brother Bill Burrows, and Bill’s girlfriend, Sherry. The Hossler home was located only two doors away from the burglarized house. On a couch in the living room were several cardboard boxes containing a suitcase, a tool box, a clock, and other items. Rick Hossler went to bed and, when he awoke several hours later, the boxes were gone and only the suitcase, the tool box, and the clock remained. On November 3, Patti Hossler left her husband and went to reside with the defendant. On that date, Rick Hossler took the items that had been left and disposed of them in a rural area outside of town. He contacted the police on November 7, indicating he had information on the burglary.

Sergeant Lou Ann Reed, of the Villa Grove police department, testified Mr. Hossler contacted her for the second time on November 20 and stated he knew of a residence where items connected with the burglary could be located. He also referred to the items he had disposed of outside of town. On November 21, the police obtained a search warrant for defendant’s residence, his parents’ home. Sergeant Reed testified she located some sewing items, sewing machine drawers, a suitcase, and several antique dolls at the home during the search.

Defendant’s mother testified her son had spent the evening of October 28 with her and family friends. She also stated Rick Hossler had brought her the dolls, suitcase, and sewing items the day after Halloween. Defendant’s father testified that on November 1, Rick Hossler had brought over the items in question and gave them to his wife.

Amy Strunk, the 15-year-old daughter of Rick and Patti Hossler, testified that on the evening of October 28 or early morning of October 29, she was sleeping on a couch in the living room of the family home. At one point she woke up and noticed boxes in the kitchen. She stated her mother, the defendant, Bill Burrows, and Sherry were in the kitchen at the time. She could not identify the boxes or their contents.

The defendant testified on his own behalf and denied any knowledge of the crime. He claimed Rick Hossler brought the stolen items to his parents’ home. The defendant stated he thought at the time Rick’s actions were unusual because the men had quarreled as a result of Patti leaving Rick and moving in with the defendant.

On January 29, 1988, the jury returned a guilty verdict against the defendant for burglary. On March 2, 1988, the court heard post-trial motions, and Price, a public defender, tendered a motion to withdraw as counsel for the defense. The court granted the motion, and Lerner, a privately retained attorney, entered his appearance for the defendant.

On April 4, 1988, the court held a hearing to determine reimbursement to the county for the services rendered by the public defender. The public defender testified as to the time spent in preparation and at trial in the defendant’s case. The State requested the court to take judicial notice defendant had posted a $1,000 cash bond and had obtained private counsel. No evidence was presented as to the source of the money for the bond or attorney fees. At the conclusion of the hearing, the court ordered the defendant to reimburse the county in the amount of $1,178.50 and applied the defendant’s cash bond for this purpose.

The court held a sentencing hearing on June 22, 1988, and the defendant was sentenced to five years in the Department of Corrections with credit for time served. On his own motion, the defendant was found indigent for the purposes of this appeal, and the office of the State Appellate Defender was appointed to represent him. A notice of appeal was filed on June 24,1988.

Defendant initially argues there was no evidence to directly connect him with the crime and his conviction came about through the improper use of a legal presumption. The legal presumption in question here is contained in Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981) (IPI Criminal 2d). This instruction provides when a defendant has exclusive possession of recently stolen property and there is no reasonable explanation of his possession, the jury may infer the defendant obtained the property by burglary.

The application of this presumption is governed by People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160. In that case, the Illinois Supreme Court held the employment of a permissive presumption was allowed where (1) there was a rational connection between the recent possession of property stolen in the burglary and the defendant’s participation in the burglary; (2) his guilt of burglary is more likely than not to flow from his recent unexplained and exclusive possession of burglary proceeds; and (3) there is evidence corroborating the defendant’s guilt. It is necessary therefore to consider each of these three requirements in regard to facts of the case before us.

As in Housby, there is no direct evidence to connect the defendant here with the actual burglary. According to the testimony of Amy Strunk, on the afternoon of October 28 she had a conversation with her mother concerning the house two doors away from her own, the house burglarized by the defendant. She stated that later that night, as a card game between her mother, the defendant, Bill Burrows, and Sherry took place, she heard discussion about whether the house was empty. Later yet, she entered the kitchen, where she found the same people and a number of cardboard boxes. When she awoke on the morning of the 29th, after her father had returned home, some of the items remained in the house, but others had been taken away. Rick Hossler testified the boxes were around the house in the early morning of the 29th when he returned home. He specifically recalled seeing a suitcase, the tool box, and a clock. These items were later identified as having been stolen from the house in question.

This testimony provides a sufficient basis to fulfill the first prong of the Housby test. There is a rational connection between the fruits of a recent burglary and the defendant’s participation in it. Here, there is a showing during the time frame when the crime took place, the defendant and others, while located only two doors away from the house in question, discussed the fact the house was empty. Only a few hours later at the Hossler home, boxes of items, some of which are later identified as having been taken from the burglarized home, appear. Defendant’s close proximity to the scene of the crime during the time when the crime was known to have occurred, the discussion concerning the burglarized house in his presence, and the appearance of items identified as having come from the house provide a sufficient rational basis to show the connection between the crime and defendant’s participation.

The next prong of the Housby test requires the defendant’s guilt to be more likely than not to flow from his recent unexplained and exclusive possession of burglary proceeds. Joint possession with others can be exclusive possession for purposes of determining whether defendant’s unexplained and exclusive possession of recently stolen property was the result of a burglary. (People v. Ross (1981), 103 Ill. App. 3d 883, 431 N.E.2d 1288.) The fruits of the burglary here appeared in defendant’s possession late on October 28 or early October 29. While the exact hour of the crime cannot be fixed, it was a matter of hours from the occurrence to the appearance of the stolen goods in defendant’s possession. Defendant argues Ross held the lapse of nine hours as too great to allow presumption that the defendant was involved in the burglary. In Ross, the court found this passage of time was too great where the only connection of the defendant to the burglary was possession of the stolen goods. Here, the evidence shows that after 6 p.m. on October 28, there was conversation about the unoccupied house two doors away. When Amy Strunk woke up after midnight and entered the kitchen where defendant was, there were boxes of items she had not seen earlier.

The focus of Ross was not establishing a bright-line rule concerning the lapse of time between a crime and the discovery of stolen goods in the possession of the defendant, but on the factors which would make it unlikely the defendant was an innocent victim of circumstance. In Ross, there was nothing to connect the defendant to the crime save possession of the stolen goods. There, the court was unwilling to accept a presumption where there was the possibility of a substantial amount of time having passed between the crime and the arrest because this greatly increased the possibility the defendant could have acquired the goods by a means other than burglary. Also, in Ross, the defendant had presented an explanation which, while not entirely plausible, was supported by some evidence.

In this case, there is also the possibility several hours passed between the crime and the time when Strunk saw the defendant with the stolen goods. Here, however, defendant’s only explanation concerning his possession of the goods was to deny he was present at the Hossler home on the night of the burglary, a position flatly contradicted by the State’s witnesses. In regard to how the stolen items came to be at his parents’ home, where the defendant resided, the defendant presented the testimony of his parents that the items were a gift from Rick Hossler. Defendant’s explanation, however, did not account for the appearance of the stolen goods in his possession with others in the Hossler home on the evening of the 28th or morning of the 29th. Hossler testified he was working at this time, and the witness Amy Strunk did not testify he was present in the home at the time. It is therefore more likely than not the defendant’s guilt flows from his connection with the possession of the stolen goods.

The final prong of the Housby test is corroborating evidence. Defendant contends there is no substantial corroborating evidence in this case. However, there is defendant’s presence near the site of the crime during the time when it occurred, his presence in the Hossler home when the situation of the house two doors away was discussed at a time close to when the stolen goods appeared, his possession of the goods and their disappearance with his departure, and his possession of them three weeks later at his parents’ home. Although defendant is correct that the testimony of some of the witnesses is directly contradictory, it is for the jury to resolve the contradictions in the evidence and to assess the veracity of the witnesses. (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.) We find the jury had before it sufficient evidence to support a presumption of guilt based on the defendant’s possession of the stolen items.

The defendant also objects to the recoupment order of the court, arguing it did not consider his ability to pay. On April 4, 1988, the court held a hearing on reimbursement to the county for legal services rendered to the defendant by the public defender. The defendant and defense counsel were both present on March 2, 1988, when the court set the hearing date but both defendant and his attorney failed to appear at the hearing. At the hearing, the State introduced evidence of the number of hours spent in and out of court on the defendant’s case, the normal rates of reimbursement, and the actual hourly cost to the county of representation. The State also asked the court to take notice of the defendant’s $1,000 bond. The court then entered an order requiring the defendant to reimburse the county in the amount of $1,178.50.

On August 24, 1988, a hearing was held on the State’s motion to apply defendant’s bond to the reimbursement order. Neither the State nor the defense presented any evidence. Defense counsel stated the defendant’s bond money had been provided by his parents. No objections were made to the order of recoupment, however, and defense counsel acknowledged the matter was at the discretion of the court. The court found no evidence had been submitted on the issue of the source of defendant’s bond. The court then ordered the money due the county for costs and the order of recoupment be taken from the defendant’s bond.

On appeal, the defendant questions the failure of the trial court to consider his ability to pay the costs of his defense. This court has previously held that when making an order of recoupment, the court must consider all the relevant factors: the affidavit and financial circumstances of the defendant, the time spent representing the defendant, the expenses reasonably incurred, the nature of the services provided, and the statutory limitations. (Ill. Rev. Stat. 1985, ch. 38, par. 113 — 3.1.) The court must create a complete record that it considered the relevant factors. People v. Terry (1988), 170 Ill. App. 3d 484, 524 N.E.2d 685.

We have, on occasion, declined to apply the waiver rule to cases involving recoupment orders under section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 113— 3.1). (E.g., People v. Brady (1988), 172 Ill. App. 3d 1079, 527 N.E.2d 590.) We did so to remedy what we perceived as confusion at the trial level concerning the rights of defendants, to emphasize and clarify the standards of recoupment orders, and to deal with the number of appeals raising this issue. This court has sufficiently set forth the requirements of a proper recoupment order, particularly in Brady and Terry. A careful reading of previous opinions makes clear that in declining to apply the waiver rule, this court was exercising its discretion, not creating a blanket rule involving all cases where recoupment is an issue. This court has not hesitated to apply the waiver rule where appropriate in reviewing recoupment orders. (See People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.) It is solely within the discretion of the reviewing court to consider alleged errors not raised or presented at trial, even if such errors affect substantial rights. (People v. McCullum (1977), 66 Ill. 2d 306, 362 N.E.2d 307.) A nonjurisdictional issue, even one of a constitutional character, which has not been properly preserved for review will not be considered on appeal. People v. Pettigrew (1984), 123 Ill. App. 3d 649, 462 N.E.2d 1273.

The defendant here had two hearings at which he had the opportunity to object to the order of recoupment or to present any additional evidence to the court. Both defendant and defense counsel failed to appear at the first hearing. They essentially did nothing at the second hearing. Adequate notice of the hearing and its subject matter was given in both cases. It is an inappropriate use of judicial resources to permit a defendant who has been provided ample opportunity to present objections and evidence to the trial court to sit silently, do nothing, and then be allowed to raise matters on appeal which should have been presented to the trial court at the first recoupment hearing.

For this reason, the defendant has waived any error in the recoupment order by not raising any objections in the trial court. While we recognize the trial court here did not create a record indicating it had considered all relevant factors, we also note the defendant raised no objections to the order at the hearing. The defendant’s arguments concerning the recoupment order are waived and we affirm the decision of the circuit court.

Affirmed.

McCULLOUGH, Ed., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUKE ALBERT MASTERS, a/k/a Albert Luke Masters, Defendant-Appellant.
    Fourth District
    No. 4—88—0538
    Opinion filed June 1, 1989.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On June 24, 1988, defendant Luke Albert Masters, after being convicted in absentia, was sentenced in absentia to 18 months’ imprisonment for committing the offense of retail theft with a prior conviction for retail theft, in violation of section 16A — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16A—3). The question presented for review is whether a prior, uncounseled misdemeanor conviction, in which defendant waived counsel, can be used to enhance a subsequent misdemeanor to a felony. We hold that it can.

On January 2, 1988, defendant and some friends were in a Venture store in Decatur. The store security guards observed defendant put on a pair of new shoes and hide his old ones. They also observed the others bring various items and put them in defendant’s coat. Defendant left without paying for these items and was stopped in the parking lot. His coat contained a slit on the inside which would open into a large pocket. When interviewed, defendant stated: “What is there to talk about, I am guilty and I shouldn’t have done it.” The value of the items taken was under $150.

Defendant appeared for his preliminary hearing but failed to appear for his trial, and was convicted in absentia. At the sentencing, the State introduced a certified copy of defendant’s November 30, 1987, conviction for misdemeanor retail theft. Commission of retail theft of property valued under $150 is a Class A misdemeanor unless the perpetrator has certain prior convictions, including retail theft, in which case it becomes a felony. (Ill. Rev. Stat. 1987, ch. 38, par. 16A—10.) Over defendant’s objection, the court allowed its admission, which enhanced the instant offense to a felony, and sentenced defendant to 18 months’ imprisonment.

Defendant, observing the earlier conviction arose out of a pro se guilty plea, contends the use of that conviction to enhance the present one is improper. He argues that pursuant to Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, the use of an uncounseled misdemeanor conviction to enhance a subsequent misdemeanor to a felony is impermissible.

Baldasar is the most recent in a series of cases dealing with the necessity of the presence of counsel in misdemeanor prosecutions. In Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006, the Court held that no person may be imprisoned for any offense unless he is represented by counsel at his trial. In Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the Court answered a question left unanswered in Argersinger, and held that this requirement of counsel did not apply if the defendant was not sentenced to imprisonment. In Baldasar, the Court determined, in a per curiam decision, that an uncounseled misdemeanor conviction cannot be used to enhance a subsequent misdemeanor conviction to a felony.

This leaves unanswered the question of whether a misdemeanor conviction, in which the defendant knowingly waives counsel and proceeds pro se, can be used to enhance a subsequent misdemeanor to a felony. Our review has convinced us that it can.

The above-cited cases, by their very language, answer this question. In Argersinger (407 U.S. at 37, 32 L. Ed. 2d at 538, 92 S. Ct. at 2012), the Court stated:

“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” (Emphasis added.)

In Scott, the Court quoted the above language and held the State could not sentence an indigent defendant to imprisonment unless it afforded him the right to counsel. It did not require the defendant avail himself of that opportunity. Similarly, in Baldasar (446 U.S. at 223, 64 L. Ed. 2d at 172, 100 S. Ct. at 1585), the opinion noted that defendant “was not represented by a lawyer and did not formally waive any right to counsel,” which suggests a different result would occur if, in fact, counsel had been waived. Thus, we are led to the inexorable conclusion that the sole obligation of the State, as set forth in these cases, is to offer indigent defendants the representation of counsel. Once that is offered, the determination as to whether to accept it is up to the defendant and, regardless of that decision, any conviction can be treated as though counsel had been present.

This analysis finds further support in a defendant’s well-recognized constitutional right to represent himself in a criminal proceeding. (See Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) In fact, this right bars the State from forcing a defendant to accept counsel’s representation. (Faretta, 422 U.S. at 836, 45 L. Ed. 2d at 582, 95 S. Ct. at 2541.) Thus, if a waiver of counsel does not authorize use of the conviction, we are faced with quite a paradox. On one hand, a misdemeanor conviction cannot be used unless counsel is present. However, on the other hand, if a defendant does not want counsel, one cannot be forced upon him. Therefore, a criminal defendant could manipulate the system and keep any misdemeanor convictions from being used against him in the future by simply refusing to accept counsel and proceeding pro se. This result is clearly illogical and not mandated by any of the above-mentioned opinions.

Accordingly, we hold that where a defendant in a misdemeanor makes a knowing and intelligent waiver of counsel, any conviction in that case can be used, where authorized by statute, to enhance any subsequent misdemeanor to a felony.

Defendant lastly argues he did not effectively waive his right to counsel in the earlier conviction, insisting that the admonitions he received were defective. However, the record belies this claim. We have reviewed the guilty plea proceeding in question and find that the admonitions given there comply with Supreme Court Rules 401 and 402 (107 Ill. 2d Rules 401, 402). Defendant knowingly and intelligently waived his right to counsel in that proceeding, and was properly convicted and sentenced in this one.

Affirmed.

KNECHT and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILL A. LIMING, Defendant-Appellant.
    Fourth District
    No. 4—88—0912
    Opinion filed June 1, 1989.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.

      John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and LeRoy Walter Lemke, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant was sentenced to a term of 12 months’ probation following his guilty plea to theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16—1). A petition was later filed to revoke defendant’s probation. Defendant did not appear at the hearing on the petition because he was in the custody of the Department of Corrections on an unrelated matter. The circuit court of Woodford County proceeded with the hearing in defendant’s absence and found the allegations in the petition proved. Defendant was sentenced to a further 12 months’ probation, 65 days in the county jail, and he was ordered to pay restitution and court costs. Defendant appeals. We reverse.

The sole question on appeal is whether the probation revocation hearing held in absentia was proper when defendant did not appear because he was incarcerated. We conclude that incarceration is not sufficient to prove defendant’s absence was wilful, and defendant’s probation revocation hearing was conducted in error.

It is clear that section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1) is inapplicable because the offense involved in the instant case is a misdemeanor. Section 115 — 4.1 applies to felony cases and not to misdemeanor offenses. (People v. Hall (1985), 134 Ill. App. 3d 836, 840, 480 N.E.2d 1387, 1390.) Nevertheless, it is equally clear that a defendant may be tried in his absence when charged with a misdemeanor or violation of an ordinance. (Hall, 134 Ill. App. 3d at 841, 480 N.E.2d at 1390; see also People v. Johnston (1987), 160 Ill. App. 3d 536, 540-41, 513 N.E.2d 528, 530.) If a defendant voluntarily absents himself from a probation revocation hearing, he has waived his right to be present, and the court is not in error for proceeding in absentia. (Hall, 134 Ill. App. 3d at 841-42, 480 N.E.2d at 1390-91.) The focus in such a case “becomes whether defendant voluntarily waived his right to be present by failing to appear at the probation revocation hearing.” (Hall, 134 Ill. App. 3d at 841, 480 N.E.2d at 1390.) We hold, as a matter of law, that a defendant who is incarcerated is not voluntarily absent from his court proceeding and has not waived his right to appear. The circuit court abused its discretion in proceeding with the probation revocation hearing in defendant’s absence.

For the reasons stated above, we reverse the order of the circuit court of Woodford County and remand the cause for a new probation revocation hearing.

Reversed and remanded.

McCULLOUGH, P.J., and SPITZ, J., concur.