author: JUSTICE DUNN

text:
      In re ADOPTION OF D.A. et al., Minors (N.H. et al., Petitioners-Appellants, v. A.A., Respondent-Appellee).
    Second District
    No. 2—91—0092
    Opinion filed December 4,1991.

      Gitlin & Burns, of Woodstock (H. Joseph Gitlin, of counsel), for appellants.
    Thomas W. Hunter, of Barrington, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioners, N.H. and V.H., appeal from an order of the circuit court of McHenry County denying their petition to adopt three minor children born during V.H.’s prior marriage to respondent A.A. Petitioners argue that the trial court’s order was against the manifest weight of the evidence and that the court employed an improper standard in making its ruling. We reverse and remand.

V.H. and A.A. were married in 1978. Their three children, D.A., N.A., and K.A., were born in 1979, 1981, and 1982, respectively. Shortly after K.A. was born, V.H. filed a petition for dissolution of marriage in the circuit court of Cook County. That court issued a judgment for dissolution of marriage on February 2, 1983. Under the terms of the judgment, A.A. was to pay $100 per week in child support and to receive reasonable visitation rights. V.H. and N.H. were married on August 24, 1988.

On January 24, 1990, V.H. and N.H. filed a petition to adopt the three children in the circuit court of McHenry County. They alleged in the petition that A.A. was an unfit parent because he had deserted the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(c)) and had failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(b)). They subsequently amended the petition to add abandonment of the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(a)) as a further ground.

The trial on the petition for adoption commenced on September 27, 1990. Our supreme' court has held that, under circumstances such as those present in this case, trial courts must undertake a two-step process in ruling on adoption petitions. (In re Adoption of Syck (1990), 138 Ill. 2d 255, 276.) The first step is to determine whether the parent whose parental rights petitioners are seeking to terminate is unfit. (Syck, 138 Ill. 2d at 276.) At this stage it is the parent’s past conduct which is under scrutiny; evidence of whether allowing the adoption would be in the children’s best interests is not to be considered. (138 Ill. 2d at 276.) If the court determines that petitioners have met their burden of establishing by clear and convincing evidence the existence of one or more grounds for unfitness, it must then determine whether termination of parental rights and allowance of the adoption petition would be in the children’s best interests. 138 Ill. 2d at 277.

In accordance with Syck, the trial court bifurcated the trial so that the question of A.A.’s alleged unfitness would be considered during the first part of the trial. A.A. and V.H. were the only witnesses to testify. The following facts were brought out in either their testimony or the exhibits admitted into evidence.

A.A. saw the children with some degree of regularity between the 1983 dissolution of his marriage to V.H. and July 1985. V.H! would usually take the children to the Four Coins Restaurant in Wauconda, A.A.’s place of employment, so he could see them. The regular visitation ceased, however, after an incident that took place on July 17, 1985, in the restaurant parking lot. According to V.H., they had an argument concerning his failure to make child support payments and notices he had received from the Department of Public Aid concerning the late payments. At one point A.A. threatened to kill her. A Wauconda police officer who was standing nearby interceded and told A.A. to calm down. A.A. denied making any such threat to V.H. Instead, he testified that during the argument in question, V.H. stated that she did not want any more money from him and did not want him to see the children.

According to V.H., A.A. did not see the children at all from the time of the July 17, 1985, incident until late 1989. A.A. testified that he did visit with the children between one and four times in late 1985 and 1986. He stated that he also saw the children a few times by following them to school. A.A. claimed that he tried to call V.H. about visitation a few times after the July 1985 incident in the Four Coins parking lot but was only able to reach her answering machine. The machine played a song and then disconnected the call without enabling him to leave a message. V.H. denied ever having an answering machine during the relevant period. A.A. further testified that he did not go to V.H.’s apartment to request visitation because he feared she would call the police.

V.H. further testified that she did not ever speak to A.A. on the phone after the July 1985 incident although she tried to call him four or five times at the Four Coins restaurant. Each time she was told that A.A. was no longer working there. V.H. also stated that she contacted the Cook County Child Support Bureau once or twice during this period because A.A. was far behind in his support payments. The Bureau was unable to locate him.

The parties agree that when A.A. did exercise his visitation rights he seldom saw his daughter K.A. A.A. stated that this was because V.H. did not want him to see her. V.H. testified, however, that A.A. would not see K.A. because he would not acknowledge being her father. According to V.H., the day K.A. was born, A.A. left the hospital in anger because he did not believe he was capable of fathering a baby girl. He did not return to the hospital. When K.A. returned home several days later, A.A. stated that someone else must have been K.A.’s father.

A.A. stated that he left the hospital on the night K.A. was born only because there was a lot of blood around and this disturbed him. He testified that he returned to the hospital the next day to see V.H. and K.A. A.A. admitted stating to V.H. that K.A. might not be his daughter but testified that he made this accusation because of V.H.’s behavior.

Records from the clerk of the circuit court of Cook County show that at the time of trial, A.A. was behind in his child support payments by more than $30,000. According to the records, A.A. made no payments from May 31, 1985, through July 25, 1987. Early in 1985 V.H. began to receive public aid. A.A. testified that at one point he called the Department of Public Aid and asked that payments to V.H. be stopped. According to A.A., he made this request because he would have a better chance to see his children if she had been more dependent upon his child support payments.

A.A. made $1,150 in child support payments in 1987 when his total income was $4,376, and $1,350 in 1988 when his income was $15,159. Although his income increased to $25,173 in 1989, he made no support payments that year. V.H. stopped receiving public aid payments in 1988 after moving in with N.H., whom she married later that year.

A.A. testified that he consulted with his family’s attorney, a man named Cardaras, sometime in 1986 with respect to his visitation rights. Cardaras advised him to wait before filing any petition to enforce visitation. A.A. never paid any fees to Cardaras with respect to this matter. After Cardaras died, A.A. retained an attorney named Richard Valentino. Valentino sent V.H. a letter addressed to her post office box. In the letter, which was dated September 2, 1988, Valentino threatened to initiate court action unless V.H. permitted A.A. to see the children.

It is clear from the evidence that A.A. knew where V.H. and the children lived until they moved to McHenry County with N.H. in April 1988. V.H. testified that she did not notify A.A. about the new address because she did not know where he was. According to V.H., she wanted A.A. to visit the children and have a good relationship with them until the fall of 1988, when it was decided that N.H. would try to adopt the children.

On November 15, 1988, A.A. filed with the circuit court of Cook County a petition to enforce his visitation rights. Pursuant to a subsequent order of that court, A.A. saw the children twice during the Christmas season in 1989. A.A. testified that the children acted in a hostile manner toward him on these occasions. During the second visit, he attempted to give them Christmas presents but the children said they had enough toys and refused to accept them. Other than this one occasion, A.A. did not attempt to send the children any presents or greeting cards after May 1985. He testified that he did not do so because he felt V.H. would not allow the children to see the cards or gifts.

In announcing his ruling the trial judge stated that he did not believe A.A. was a credible witness. The judge also stated that he was reluctant to terminate parental rights on the grounds advanced by petitioners when there was any glimmer of interest on A.A.’s part. The trial court therefore denied the petition without proceeding to the second phase of the bifurcated trial. N.H. and V.H. now appeal.

Petitioners’ primary contention on appeal is that the trial court’s judgment was against the manifest weight of the evidence. According to petitioners, the trial evidence established the existence of two grounds for declaring A.A. unfit. One is that he abandoned the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(a)). The other is that he failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the children (see Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(b)).

Abandonment is parental conduct which shows an intent to forego parental duties and relinquish any parental rights with respect to the children. (In re Petition to Adopt Cech (1972), 8 Ill. App. 3d 642, 644.) Petitioners focus their contentions upon this ground and go on to argue that since the evidence conclusively establishes that A.A. abandoned the children, it also establishes his failure to maintain a reasonable degree of interest, concern, or responsibility as to their welfare. Because we believe the latter ground is dispositive of the case by itself, we choose to focus our analysis upon it rather than abandonment.

Every case in which allegations of parental unfitness must be resolved is unique unto itself and must be decided upon its own facts. (In re Adoption of Syck (1990), 138 Ill. 2d 255, 279.) Parental rights should only be terminated on the basis of the ground we are considering if there is clear and convincing evidence that the parent has not maintained a reasonable degree of interest, concern, or responsibility as to the welfare of the children. (Syck, 138 Ill. 2d at 280.) In making the above determination a court should evaluate the parent’s conduct in the context of the circumstances in which it occurred. (138 Ill. 2d at 278.) Additionally, the court should consider the parent’s efforts to show interest in the children or communicate with them and not necessarily the success of those efforts. 138 Ill. 2d at 279.

The trial judge stated that he did not believe A.A. was a credible witness. According to V.H.’s version of events, which the trial judge apparently found more credible, A.A. made no effort to see or communicate with the children for a period of over three years, from approximately July 1985 until September 1988. Prior to that time, he refused to visit with his daughter. Even if some credence is given to A.A.’s testimony, the picture is not much brighter. A.A. testified that he visited with the children between one and four times during the above period. His only other efforts to communicate with the children were a few phone calls which reached V.H.’s alleged answering machine. A.A. did not show up at V.H.’s apartment in an effort to see the children on any other occasions even though he was aware of her address until. April 1988. He also did not attempt to send the children any letters, cards, or presents.

Additionally, A.A. made few child support payments during the period in question. In 1989, when his income was substantially higher than it was for any other year following his divorce, he made no payments at all. At one point by his own admission, A.A. tried to convince the Department of Public Aid to stop making payments to V.H. Had the Department complied with A.A.’s wishes, there can be little doubt that the children would have been harmed.

The evidence establishes that for a period of over three years A.A.’s efforts to see or communicate with his children were minimal or nonexistent. He provided little financial support for the children and even tried at one point to cut off their primary means of support, public aid. In light of the above, we conclude there was clear and convincing evidence that A.A. failed to maintain a reasonable degree of interest, concern, and responsibility with regard to the welfare of his children and he was therefore an unfit parent. The trial court’s contrary conclusion was against the manifest weight of the evidence.

In issuing his ruling, the trial judge stated that grounds for unfitness probably existed at one point but the situation had changed because of A.A.’s recent attempts to enforce his visitation rights. In our view, this logic is unsound and could lead to undesirable consequences. The trial court’s approach could permit parents who have been severely abusing or neglecting their children for lengthy periods of time to avoid a finding of unfitness by claiming the long-term pattern of abuse or neglect had recently ceased.,We hold therefore that, in cases involving lengthy periods of objectionable conduct such as the case at bar, departure from the objectionable conduct does not eliminate the existence of grounds for determination that a parent is unfit. Instead, it is a factor that may be considered during the second phase of the bifurcated trial in determining whether allowing the adoption petition and terminating the parental rights of one parent would be in the best interests of the children.

In light of our holding, the second phase of the bifurcated hearing must be held to determine whether allowance of the adoption petition and termination of A.A.’s parental rights would be in the best interests of the children. We therefore remand the cause to the circuit court of McHenry County for that purpose. The court may consider evidence concerning the relationship between the children and A.A. since its prior judgment was entered as well as all other relevant evidence.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK C. FERNANDEZ, Defendant-Appellant.
    Second District
    No. 2—89—0940
    Opinion filed December 6,1991.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier, Marc Davidson, and James E. Chadd, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Frank Fernandez, defendant, appeals from the denial of his petition for post-conviction relief. The record reveals that Fernandez was charged with felony murder (Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(a)(3)), predicated on his acts as an accessory to a burglary and subsequent murder, where the victim was bludgeoned to death with a hatchet used by codefendant, Charles Wright. We affirm.

In 1986, Richard Berry served as court-appointed counsel for Fernandez, representing him in plea negotiations and in the sentencing hearing. After setting the sentence at 40 years’ imprisonment, the judge admonished Fernandez according to the requirements set forth in Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)). (See also 134 Ill. 2d R. 604(d).) However, no further action was taken by Berry.

Consequently, on April 3, 1989, defendant filed a pro se petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.), challenging the circumstances surrounding his plea and sentence. On August 3, 1989, defendant filed an amended post-conviction petition with the aid of court-appointed counsel. The petition prayed that the conviction be vacated, that he be permitted to withdraw his plea, and that the cause proceed to trial. Alternatively, defendant prayed that defendant be afforded a new sentencing hearing. A hearing was held on defendant’s petition, but all relief was denied. Consequently, the central issue in this appeal is whether the court erred in denying relief under defendant’s post-conviction petition.

An action for post-conviction relief represents a collateral attack on a prior judgment. It is not an appeal from the underlying conviction and sentence. (People v. Ruiz (1989), 132 Ill. 2d 1, 9.) To be entitled to relief under the statute, the petitioner bears the burden of proving a substantial deprivation of rights under the United States Constitution or the Illinois Constitution. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 284.) However, the trial court’s decision to grant or deny relief will not be disturbed on appeal unless manifestly erroneous. Del Vecchio, 129 Ill. 2d at 284.

The first issue Fernandez raises is that he was denied the effective assistance of counsel. He specifically alleges that Berry failed to file a motion to withdraw his guilty plea and initiate an appeal of the sentence, when he informed Berry that he expected an appeal to be taken on his behalf. The failure to file an appeal can constitute ineffective representation. (See People v. Wilk (1988), 124 Ill. 2d 93; People v. Nicewanner (1981), 93 Ill. App. 3d 1.) However, the petitioner must present adequate proof that he communicated such wishes to his attorney in the form of affidavits, records, or other evidence containing specific facts. (People v. Williams (1970), 47 Ill. 2d 239, 241; People v. Jones (1976), 36 Ill. App. 3d 315, 320-21.) The rationale for this rule is that once a defendant is convicted, his attorney’s advice will, in retrospect, appear to be bad advice. As stated by the appellate court:

“Hindsight is an incisive human faculty. Armed with it, a defendant can look back to the unpleasantness of his conviction and tell with precision what his counsel should have done prior to and during the trial. Our law, however, requires that a post-conviction petition contain more than a catalogue of failures on the part of counsel for the defense. It requires that the petition contain, factual allegations which when supported by the evidence, will show substantial prejudice to the rights of the defendant and from which it can be established that the outcome of the trial, had those failures not occurred, would probably have been different.” People v. Browry (1972), 8 Ill. App. 3d 599, 605.

The evidence offered by defendant to establish the requisite proof was the testimony of his mother, his court-appointed counsel, Richard Berry, and himself. Both Fernandez and his mother claim that they informed Berry that an appeal was to be taken, but Berry responded that any further relief would be “a long time down the road because of the climate, because of the politics of'the time” and that “nothing is going to happen right now.” However, Berry could not recall any such conversation with Fernandez or his mother, and his notes did not reflect any communication with them after the sentencing hearing. Furthermore, defendant indicated on cross-examination that he did not specifically inform Berry that he wished to appeal, but rather that he was under the mistaken belief that Berry was making arrangements for an appeal with the appellate defender.

Nevertheless, defendant’s petition alleged that the failure to file an appeal constituted ineffective assistance of counsel. Therefore, a two-part test must be met. First, defendant must show that counsel was deficient, which is judged by an objective standard of reasonableness. (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) Second, defendant must establish that the deficient performance prejudiced his defense to the extent that he was denied a fair trial. (People v. Albanese (1984), 104 Ill. 2d 504, 525-26, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) This standard is met by showing that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698,104 S. Ct. at 2068.

The trial judge determined that defendant was not denied the effective assistance of counsel, since he failed to prove that the result would have been different if Berry had filed an appeal. First, the judge found that defendant had no basis to withdraw his plea, because all of the proper admonishments were given. The judge even stressed the importance of the admonishments, stating “[i]t is not just a tiresome litany, it is specific questions addressed to the very issues he now raises that were put to him and that he consciously and understandingly answered.” Having an opportunity to hear defendant testify, the court found no basis for permitting defendant to withdraw the plea. We agree.

Next, the judge found no basis for concluding that the sentence of 40 years’ imprisonment was excessive. The sentencing judge properly considered factors such as defendant’s prior criminal record, his age and maturity, background, and capacity for rehabilitation. However, the sentencing judge also characterized the crime as brutal and heinous and stated that he believed Fernandez posed a considerable danger to the public, because “his attitude was such that he was indifferent to the physical well being of others.”

Although Fernandez did not inflict any of the fatal blows, the judge considered his conduct vital to the commission of the crime. He provided transportation to and from the scene, entered the premises knowing the purpose was to commit a burglary, knew his codefendant was armed, and assisted in moving the stolen property and in concealing the crime. He stated:

“[I]t appears that but for the fact that the Defendant had driven a separate car to the scene of the burglary there would have been no way of having himself and the co-defendant exit the premises ***. Admittedly, the Defendant stated that he did not intend to commit a crime ***.
[However], [t]he Defendant was present at all times, aided and abetted the commission of the crimes, both burglary and murderf,] and subsequent to the commission of both crimes facilitated an escape of the co-defendant and himself.”

Furthermore, defendant was present when the fatal blows were inflicted, and there is no evidence that Fernandez attempted to intervene. The offense of felony murder accompanied by brutal or heinous behavior carries a minimum penalty of 20 years and a maximum of natural-life imprisonment, or even death. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—1(a)(1), 9 — 1(b).) Considering all of these factors, we find that the sentence of 40 years’ imprisonment was not excessive. Therefore, the court did not err in denying relief on the post-conviction petition, because defendant failed to meet his burden of proving he was denied the effective assistance of counsel.

Fernandez next contends that he did not voluntarily enter his plea, because Berry gave the impression that he would receive the minimum sentence of 20 years if he pleaded guilty. This court has discussed the law concerning the voluntariness of a plea, stating as follows:

“[A] guilty plea is not voluntary and intelligent if it is entered on the basis of a misapprehension of law or fact or a misrepresentation by defense counsel, the State’s Attorney, or someone else in authority. [Citation.] Where any of these circumstances are found to exist, the plea may be withdrawn; however, the defendant bears the burden of demonstrating any alleged misunderstanding or misrepresentation. [Citations.] A misapprehension as to sentencing alternatives may render the guilty plea involuntary if the defendant was actually unaware of the possible punishment. [Citations.] However, where a defendant has been admonished thoroughly, a guilty plea is not revocable merely because the defendant subjectively believed that he or she would receive a certain sentence but did not. [Citation.] This is especially true where there is no reasonable justification for the defendant’s mistaken subjective impression. [Citation.] In all instances, however, the decision whether to allow a defendant to withdraw his plea of guilty rests within the discretion of the trial court, and will not be disturbed on appeal unless there is an abuse of discretion.” People v. Kraus (1984), 122 Ill. App. 3d 882, 888.

In this case, Fernandez testified that Berry “forced” him to plead guilty because he did not want the case to proceed to trial. He further testified that Berry assured him that he would receive a sentence of 20 years’ imprisonment if he pleaded guilty. However, Berry stated that in his 20 years’ experience as a criminal defense attorney, he has never assured or even speculated what a sentence might be, but that he advises defendants of the minimum and maximum penalties for the particular offense. He recalled that when Fernandez contacted him and related that he wanted to plead guilty, he informed defendant that his penalty could be anywhere from 20 years to death, but that the State would not seek the death penalty if he pleaded guilty. However, he denies that he “promised” Fernandez he would definitely receive 20 years. The testimony of Mrs. Fernandez corroborates that of Berry, in that she stated he informed her of the minimum and maximum penalties for her son’s offense, and of a “possibility” that he could receive the minimum sentence of 20 years.

Furthermore, the record establishes that Fernandez was thoroughly admonished of his rights and- of the consequences of entering his plea, including that by virtue of the plea, he “was leaving the sentence entirely up to the Court.” He was advised of the possible sentences for felony murder, that he has a right to a jury trial, and that he could withdraw his plea any time before the court accepted it. Finally, the court carefully inquired whether defendant was entering the plea because he was threatened or because someone made representations as to what his sentence would be, to which he responded negatively.

In People v. Dodd (1972), 6 Ill. App. 3d 485, the appellate court dismissed a post-conviction petition based on substantially similar facts. The basis for this ruling was that the judge’s admonishments unequivocally established that “defendant understood that any promise made to him by his counsel was not binding on the trial court and would be a worthless ground to rely upon in pleading guilty.” (Dodd, 6 Ill. App. 3d at 486.) Similarly, the court refused to allow a defendant to withdraw his plea because his attorney “promised” a lesser sentence than he received in People v. Robinson (1987), 157 Ill. App. 3d 622. In discussing defendant’s contention, the court stated:

“[Pjetitioner contends that his expectation of a light sentence was permissible in reliance on the alleged assurances of his counsel and clearly implies that the court’s lengthy and exhaustive admonitions were merely a perfunctory or ritualistic formality not requiring his attention. This characterization of the proceedings is unacceptable.” Robinson, 157 Ill. App. 3d at 628.

Accordingly, the evidence in the present case supports the conclusion that defendant was under a subjective, mistaken belief that he would receive the minimum sentence of 20 years’ imprisonment. Unfortunately, the mere belief or hope that a defendant will receive a shorter sentence by pleading guilty does not entitle him to relief when that expectation is disappointed. (People v. Turner (1982), 111 Ill. App. 3d 358, 371-72; People v. Ring (1978), 59 Ill. App. 3d 852, 853-54.) Instead, the defendant must prove that he entered the plea under a misapprehension of fact or law by showing “the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.” People v. Hale (1980), 82 Ill. 2d 172, 176.

However, even if Berry did inform defendant that he expected his sentence to be 20 years, a guilty plea made in reliance of counsel’s estimate of a sentence has been considered voluntary. (See People v. Radunz (1989), 180 Ill. App. 3d 734, 742; Robinson, 157 Ill. App. 3d at 629; People v. Jones (1985), 135 Ill. App. 3d 1023, 1033.) Under these circumstances, we find that Fernandez voluntarily entered his plea and that it was not the product of any misrepresentation which warrants relief under his post-conviction petition.

Lastly, Fernandez claims he was not advised at the time the court entered his sentence that a notice of appeal must be filed within 30 days or any claim of error is deemed waived. (134 Ill. 2d R. 605(b).) However, the record clearly indicates that the court carefully admonished Fernandez of his statutory and constitutional rights and explained those rights in language that was easy to understand. Furthermore, Fernandez testified at the hearing on his petition that he knew he had 30 days to withdraw his plea of guilty and file a notice of appeal. He stated as follows:

“Q. [Mr. White, for the State]: Now, did you know how many days you had in which to file that notice of appeal and withdraw the plea of guilty? How many days?
A. [Fernandez, defendant]: Thirty days.
Q. How did you know it was thirty days?
A. Because I understood what the Judge said.”

Therefore, we find that the record illustrates defendant was adequately informed of his rights.

Finally, even if any of the above allegations were amply supported by the evidence, Fernandez is still not entitled to any relief on his petition. Post-conviction relief will be granted only when defendant suffers prejudice by the denial of constitutional rights. (See Wilk, 124 Ill. 2d at 107.) As we stated in discussing the allegations of ineffective assistance of counsel, there was no abuse of discretion in rendering a sentence of 40 years’ imprisonment, because all of the proper admonishments were given, and the sentencing judge considered the relevant aggravating and mitigating factors. Therefore, we find no basis for concluding that defendant is excessively incarcerated in violation of his constitutional rights.

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

Affirmed.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE VILLAGE OF LAKE IN THE HILLS, Plaintiff-Appellee, v. ROBERT HAIN, Defendant-Appellant (Unknown Owners, Defendant).
    Second District
    No. 2—91—0347
    Opinion filed December 6,1991.

      Michael E. Coppedge, of Cowlin, Ungvarsky, Kukla & Curran, of Crystal Lake, for appellant.
    Richard Flood and Valeree D. Marek, both of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, Robert Hain, appeals from the judgment of the circuit court of McHenry County entered on a jury verdict awarding him $71,000 as just compensation for the plaintiff’s condemnation of defendant’s property. The sole issue the defendant raises on appeal is whether the trial court erred in barring the defendant, as owner of the property, from testifying as to his opinion of the property’s value.

The following facts are relevant to the disposition of this appeal. On February 5, 1990, the plaintiff, the Village of Lake in the Hills, filed its eminent domain complaint seeking to condemn property owned by the defendant. The defendant in turn filed a traverse and motion to dismiss. The plaintiff subsequently filed an amended complaint, and the court denied the defendant’s traverse and motion to dismiss.

The jury returned a just compensation verdict on January 25, 1991, in the amount of $71,000. On January 31, 1991, the defendant filed, pursuant to section 2 — 1202 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202), a motion for a new trial wherein he asked the trial court to set aside the jury verdict and grant him a new trial. On February 7, 1991, the plaintiff presented its motion for entry of judgment on the January 25, 1991, jury verdict. Pursuant to that motion, on February 7, 1991, the court signed a “judgment order” which entered judgment on the verdict and directed that plaintiff deposit the sum awarded by the verdict with the treasurer of McHenry County as just compensation for the condemned property, and, upon such deposit with the treasurer, that fee simple title to the property vest in the plaintiff. There is nothing else in the record to establish the court entered judgment on the verdict prior to February 7, 1991. Thereafter, on March 5, 1991, the court denied the defendant’s motion for a new trial. On March 25, 1991, the defendant filed his notice of appeal. That notice states the plaintiff is appealing from the February 7, 1991, judgment as well as the trial court’s previous denial of his traverse and motion to dismiss.

While the plaintiff has not raised the propriety of the steps taken by the defendant to perfect this appeal, we may do so. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440.) As a reviewing court, we have a duty to consider our jurisdiction and to dismiss the appeal if we determine that jurisdiction is lacking. Ferguson, 111 Ill. 2d at 440.

We begin our analysis by looking to Supreme Court Rule 303(a), which provides in pertinent part that “the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1).) It is clear in this case that the March 25, 1991, notice of appeal was not filed within 30 days of the February 7, 1991, order entering judgment on the verdict. Thus, the only possible source of our jurisdiction is if the January 31, 1991, motion for a new trial, which was not denied until March 5, 1991, constitutes a timely post-trial motion directed against the judgment within the meaning of Rule 303(a).

Section 2 — 1202(c) of the Code, which governs post-trial motions in civil jury cases, requires that post-trial motions “must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1202(c).) Here, the defendant’s motion for a new trial was filed before judgment was entered. As such, the defendant’s post-trial motion was neither timely nor directed against the judgment, both of which are required to invoke the tolling provisions of Rule 303(a).

This conclusion is consistent with the supreme court’s decision in Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536. In that case, the trial court granted the plaintiff’s motion for. summary judgment on August 30, 1982, but did not sign and file a formal order granting summary judgment until October 6, 1982. Prior to the court entering its formal order, the defendant filed a motion to reconsider the granting of summary judgment on September 20, 1982, which was denied on December 30, 1982. The defendant then filed his notice of appeal on January 28, 1983. Barth, 103 Ill. 2d at 538.

The Barth court held that the September 20 motion to reconsider was not timely within the meaning of Rule 303(a) as it was filed prior to the October 6 entry of judgment. (Barth, 103 Ill. 2d at 538-39.) Consequently, the January 28, 1983, notice of appeal, filed more than 30 days after the October 6, 1982, judgment was entered, did not vest the appellate court with jurisdiction. Barth, 103 Ill. 2d at 539.

Here, as in Barth, the judgment was not entered until February 7, 1991, after the motion for a new trial had been filed. The fact that the judgment entered here was on a jury verdict does not distinguish Barth. In that regard, we note that the jury verdict was not a “judgment” as that term is used in Rule 303(a). (See Gilman v. Kessler (1989), 192 Ill. App. 3d 630, 638-39.) Furthermore, section 2— 1201(b) of the Code requires that the court promptly enter judgment on the verdict (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1201(b)). The record does not demonstrate that judgment was entered prior to February 7, 1991. Nor is there any suggestion why judgment was not entered before that time.

Because Rule 303(a) and Barth require that the post-trial motion be filed after the entry of the judgment to toll the 30-day period for filing a notice of appeal, the defendant’s motion for a new trial in this case was not timely. Absent a timely post-trial motion directed against the judgment, the notice of appeal filed on March 25, 1991, was untimely as it was filed more than 30 days after the judgment entered on February 7, 1991. Consequently, we are without jurisdiction to consider an appeal from the February 7,1991, judgment.

The appeal is therefore dismissed.

Appeal dismissed.

DUNN and UNVERZAGT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY McGEE, Defendant-Appellant.
    Second District
    No. 2—89—1164
    Opinion filed December 4,1991.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Leroy McGee, was convicted of one count of unlawful delivery of between 15 and 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)) and two counts of unlawful delivery of less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2)). He was sentenced to a 16-year term of imprisonment for the largest delivery and to four-year terms for each of the smaller deliveries with all sentences running concurrently. On appeal, defendant contends that he received ineffective assistance of counsel because his attorney attempted to raise an entrapment defense which was doomed to failure and did not present any closing argument after the trial court rejected his proffered entrapment instructions. Defendant also argues that his 16-year sentence was excessive given his lack of a prior criminal record. We affirm.

The charges against defendant arose from a series of transactions involving Robert Whipple, an undercover agent. Whipple testified that on September 6, 1988, he went to a store in Freeport called the “Wooden U” with another agent, Pat Carney, to speak with a man named Ken Webermeier about a possible drug purchase. Webermeier was remodeling the store at the time. Whipple asked if Webermeier could find some cocaine for him. Webermeier then introduced Whipple to defendant and told defendant to get the cocaine. Whipple gave defendant $280 for one-eighth of an ounce of cocaine. Defendant left the store and returned with the cocaine after a short time. He handed the packet of cocaine to Whipple, who put it in his pocket and left the store.

Whipple subsequently spoke to defendant on the telephone and arranged to meet him at a bar in Freeport on October 19, 1988, to discuss buying more cocaine. A second undercover agent, Ron Vandergrift, also went to this meeting. While at the bar, Whipple asked if he could buy between four and six ounces. Defendant stated that he could arrange for Whipple to buy six ounces. Whipple stated that he would like to first purchase some smaller amounts to check the quality. That night Whipple purchased an eighth of an ounce of cocaine from defendant for $300 and one-sixteenth of an ounce for $100.

Shortly after the above meeting Whipple and defendant again spoke on the telephone. They arranged to meet in a bank parking lot on November 4, 1988. When they met defendant told Whipple that he had two sources who were willing to sell him five ounces of cocaine. Only one of these sources was willing to deal directly with Whipple. Whipple stated that he would make the purchase from that source at a price of $1,400 per ounce.

Defendant and Whipple left the parking lot in defendant’s car. They picked up a man named Manuel Favela, who was to sell the cocaine to Whipple. Defendant told Favela that Whipple had the money and it was all right to do business with him. Favela did not have the cocaine with him at the time. He arranged to meet them that evening in a community college parking lot to deliver the cocaine.

Defendant and Whipple then went to a bar where they met Agent Vandergrift. Defendant asked if he could have a small portion of the cocaine that Whipple was to obtain from Favela in return for setting up the transaction. Whipple gave him $200 instead. Whipple and defendant eventually left the bar and drove to the college parking lot to meet Favela. While driving to the lot defendant suggested that he and Whipple jointly purchase a kilo of cocaine with defendant selling his portion of the kilo in the Freeport area.

When they arrived at the parking lot, Favela told Whipple to leave the money on the floorboard of defendant’s car and to retrieve the cocaine from Favela’s car. Whipple did so and signaled other agents to initiate arrests. Agent Vandergrift testified that he searched Favela and found the roll of money that Whipple had placed on the floorboard of defendant’s car. Vandergrift also searched defendant and found the two $100 bills that Whipple had given to him. Additionally, Vandergrift corroborated Whipple’s testimony concerning many details of the October 19 and November 4 cocaine transactions.

After the State rested defendant’s attorney presented his opening argument. He stated that defendant would testify and admit to participating in the alleged cocaine transactions. Defendant would claim that the government entrapped him into committing the alleged offenses by preying upon his cocaine addiction.

Defendant subsequently testified as follows. As of September 1988, he spent $300 to $400 per week on cocaine. He had been addicted to the drug since 1984. At the time of the drug transactions in question, defendant was employed as a handyman for Ken Webermeier. They were remodeling the Wooden U store on September 6, 1988, when Agent Whipple and another man came in to speak with Webermeier. Defendant was working on the second floor of the store at the time.

According to defendant, Webermeier went upstairs and asked if defendant could obtain cocaine for two friends of his who were downstairs. Defendant stated that he would try even though he was not sure where to get it. When he went downstairs, the men asked what the price would be. Defendant said he was not sure but he thought it would be around $280. Defendant left after the others gave him the money. He was able to purchase the cocaine at the second place he went to. When he returned with the cocaine, Whipple gave him a line of cocaine for obtaining the substance. Defendant testified that he and Whipple then both snorted a line of cocaine at the store. Defendant obtained the drugs because he was hoping to get some free cocaine out of the deal.

Defendant further testified that when he agreed to make the second drug purchase Whipple agreed to give him some of the cocaine. After defendant brought the cocaine to Whipple he shaved off a piece and gave it to defendant. Whipple and defendant then snorted some of the cocaine. Defendant stated that he tried to convince Whipple to agree to give him some cocaine in return for arranging the final transaction but Whipple insisted upon giving him money instead. Defendant testified further that prior to September 6, 1988, he had never obtained cocaine for anyone.

Ken Webermeier testified that on September 6, 1988, he did some lines of cocaine with defendant and Whipple after defendant returned to the Wooden U with the drugs. On rebuttal, Agent Carney testified that he was at the Wooden U with Agent Whipple on September 6 and that Whipple did not use any cocaine. Agent Whipple also testified that he never used cocaine with defendant.

At the instructions conference following the close of the evidence, defendant’s attorney sought to have the jury instructed about the defense of entrapment. The trial judge refused to do so because he felt the evidence clearly showed that defendant was predisposed to commit the alleged offenses. When defendant’s attorney was called upon to present closing argument, he stated, “In light of the court’s earlier ruling in the case prior to arguments being offered, there is no argument that I can make to this jury as no issues are now available.” The jury subsequently convicted defendant of all three counts of delivery of a controlled substance.

At his sentencing hearing defendant testified that he was in a drug rehabilitation program at Sojourn House in May and June 1989. In July 1989 he had a relapse, however, and began to use cocaine again. The trial judge cited the need for deterrence as the primary factor in his sentencing decision. He stated that the sentence would have been longer were it not for defendant’s lack of a prior criminal history. The trial court also imposed sentence for five counts of forgery to which defendant had pleaded guilty. The forgeries were committed while defendant was out on bond for the cocaine delivery charges. The trial court sentenced defendant to a three-year term of imprisonment for each of the forgery counts. Those sentences were to run concurrently with one another but consecutively to the sentences imposed for the cocaine deliveries.

Defendant’s primary contention on appeal is that his trial attorney rendered ineffective assistance of counsel by attempting to raise an entrapment defense which was not at all supported by the evidence and by failing to raise any alternative arguments after the trial judge refused to instruct the jury on entrapment. Ordinarily, in order to establish an ineffective assistance of counsel claim, the defendant must demonstrate that his or her attorney's performance “fell below an objective standard of reasonableness” (Strickland v. Washington (1984), 466 U.S. 668, 688, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064) and a reasonable probability exists that the result would have been different were it not for counsel’s errors. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

There are, however, circumstances so likely to prejudice the defendant that prejudice from inadequate representation under these circumstances will be presumed. (466 U.S. at 692, 80 L. Ed. 2d at 696, 104 S. Ct. at 2067.) Thus, if defendant’s attorney “entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” United States v. Cronic (1984), 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668, 104 S. Ct. 2039, 2047.

Our supreme court presumed prejudice to defendant in People v. Hattery (1985), 109 Ill. 2d 449, a case in which the defendant was accused of murder and pleaded not guilty. During his opening argument and during the course of the trial, defendant’s attorney conceded his client’s guilt and eligibility for the death penalty (Hattery, 109 Ill. 2d at 464-65). The court determined that this strategy was unacceptable in light of defendant’s not-guilty plea and held that defendant’s sixth amendment right to effective assistance had been violated. 109 Ill. 2d at 465.

Defendant argues that under Hattery this court should forego the two-part Strickland test and presume he was prejudiced by his attorney’s actions. Our supreme court has recently emphasized, however, that the Hattery rule must be narrowly construed, and a defendant faces a high burden before the two-part Strickland test will be forsaken. (People v. Johnson (1989), 128 Ill. 2d 253, 270.) The court further stated that the automatic presumption of prejudice employed in Hattery would not apply to all cases in which counsel concedes the guilt of his or her client. Johnson, 128 Ill. 2d at 269-70.

We agree with the State that defendant has not met the high burden that must be overcome before the automatic presumption of prejudice employed in Hattery will be applied. This case is distinguishable from Hattery in several respects. First of all, defense counsel did not concede his client’s guilt at any point in the trial. While counsel did state during opening argument that defendant had participated in the alleged drug transactions, he also argued that defendant was not guilty of the charges because defendant was entrapped. Defendant’s attorney then presented testimony that one of the agents engaged in serious misconduct by giving cocaine to defendant and using it with him. During the instructions conference, the attorney argued vigorously that entrapment instructions should be given to the jury. It was only after the trial court refused to give these instructions that defense counsel waived closing argument and stated in front of the jury that there were no available issues because of the trial court’s ruling.

In light of defense counsel’s attempts to present and argue a defense that would have resulted in his client’s exoneration, we cannot say that the trial lost its adversarial character to such an extent that departure from the Strickland rule is justified. Defendant is highly critical of his trial attorney’s attempt to present a defense which had a miniscule chance, if any, of being successful, especially when defendant admitted his participation in the alleged drug transactions in order to pursue that defense. Under the circumstances of this case, however, it appears the only alternative would have been to present no defense evidence at all and merely attempt to attack the strength of the prosecution’s case. This strategy would have inevitably led to defendant’s conviction as he was caught red-handed arranging narcotics transactions for and delivering cocaine to undercover drug agents.

Even though an entrapment defense had very dim prospects of success, defense counsel could have reasonably concluded that attempting to pursue one was a better alternative than rolling over and playing dead. In our view, the strategy adopted by defense counsel submitted the prosecution’s case to a greater degree of adversarial testing than would have been the case if the defense had presented no evidence at all in the face of a very strong prosecution case. We therefore conclude that the automatic presumption of prejudice employed in Hattery does not apply here. See People v. Pickett (1991), 217 Ill. App. 3d 426, 428-29 (no ineffective assistance where counsel admitted client guilty of alleged conduct but argued that a necessity defense might be available even though trial court later concluded evidence was insufficient to warrant instruction on that defense).

We will now apply the Strickland test to determine whether defense counsel provided ineffective assistance at trial. Because a defendant must meet both prongs of the Strickland test in order to establish ineffective assistance of counsel, such claims may be disposed of solely on the basis that defendant suffered no prejudice from counsel’s alleged deficiencies. (People v. Johnson (1989), 128 Ill. 2d 253, 271.) Here, if defendant had presented no entrapment defense and had not testified instead of admitting that he was guilty of the alleged conduct, Agent Whipple’s positive testimony that defendant twice delivered to him cocaine and arranged for a third purchase would, if unrebutted, have certainly resulted in a conviction. Therefore, defendant cannot prevail on his ineffective assistance of counsel claim.

Defendant’s final contention is that the trial court’s imposition of a 16-year sentence for the largest cocaine delivery was excessive and that the trial court failed to give adequate consideration to defendant’s rehabilitative potential. While a trial court does not have completely unbridled discretion in imposing sentence, its sentencing decisions are entitled to great deference and weight. (People v. Streit (1991), 142 Ill. 2d 13, 18-19.) A sentence will be altered upon review only if the trial court has abused its discretion. (Streit, 142 Ill. 2d at 19.) Although a trial court is required in imposing sentence to consider the defendant’s potential for rehabilitation, the court is not required to give greater weight to this factor than to the seriousness of the offense. People v. Keyes (1988), 175 Ill. App. 3d 1013, 1020.

The potential sentencing range for the most serious offense was a term of 6 to 30 years in prison. (See Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2); Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) The trial judge cited the need to deter others from committing the same offenses as the sole aggravating factor (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(7)). The judge stated that he would have imposed a longer sentence were it not for defendant’s lack of a prior criminal history. He further stated that he had not been persuaded that defendant’s criminal conduct would not recur.

In arguing that he had strong potential for rehabilitation, defendant cites his lack of a prior criminal record, his cocaine addiction, and his completion of a drug treatment program at Sojourn House. The trial judge expressly stated that he imposed a lesser sentence because defendant had no prior record. Although defendant did complete the drug rehabilitation program, he started using cocaine again by his own admission shortly after he finished the program. Therefore we cannot quarrel with the trial court’s conclusion that defendant’s criminal behavior could very well be repeated. In light of the above, the trial court gave adequate weight to defendant’s rehabilitative potential and did not abuse its discretion in imposing sentence.

For the above reasons, the judgment of the circuit court of Stephenson County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


text:
      In re MARRIAGE OF NANCY DODDS, Petitioner-Appellee, and TERRY DODDS, Respondent-Appellant.
    Second District
    No. 2—90—1372
    Opinion filed December 4,1991.

      Daniel A. Cwynar, of Rockton, for appellant.
    Norman R. Wheeler, of Vella, Sparkman & Altamore, P.C., of Rockford, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Terry Dodds, appeals from an order of the circuit court of Winnebago County modifying a child support order. Respondent contends that the trial court erred in determining that the lump-sum settlement of respondent’s worker’s compensation claim, for an injury which occurred after the dissolution of marriage, was income and, thus, was available to be apportioned for child support.

Respondent and petitioner, Nancy Dodds, were married and had three children. Following a divorce, they were remarried in 1984. In April 1985, Nancy filed a petition for dissolution of the marriage, and on July 2, 1985, a judgment of dissolution was entered. As part of the judgment, Terry was ordered to pay $210 per week in child support. Terry has since remarried, and he has three stepchildren. In April 1986, the original child support order was modified, and the payments were reduced to $150 per week.

During 1987, Terry suffered a work-related back injury, and he filed a worker’s compensation claim. The claim was settled in January 1989, for a lump-sum payment of $135,000. After fees and costs were deducted, Terry’s net award was $108,544.18. The back injury apparently disabled Terry, and he became eligible for social security disability income. As such, he receives $900 per month; his current wife receives $100; his stepchildren receive $302; and his own children receive $248.

In March 1990, Terry filed a petition to modify child support; he asked the court to reduce his payments by the amount his children were receiving from social security. Nancy filed her own petition to modify; she asked the court to allocate part of Terry’s lump-sum worker’s compensation settlement as child support.

In determining whether the worker’s compensation settlement was income, the trial court noted that section 706.1(A)(4) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 706.1(A)(4)) defines “income” as “any form of periodic payment to an individual, regardless of source, including, but not limited to: wages, salary, *** [and] workers’ compensation.” The court concluded that Terry could have taken his settlement in periodic payments but had “transformed his right to receive periodic payments into a lump sum present day cash value.” The trial court ordered Terry to pay 21% of the settlement, or $23,439, to his children. Terry appeals from that part of the order.

Terry concedes that a percentage of his income must go to child support; his only argument on appeal is that his worker’s compensation settlement is not “income.” He argues that, if the legislature had intended that all worker’s compensation payments were to fall within the definition of “income” set out in section 706.1(A)(4) of the Marriage Act, then the legislature would not have specified “periodic” payments. He argues that his payment was “a one time thing” and not “periodic.” He also urges that the lump-sum settlement would not fall within the definitions of “income” found in the Principal and Income Act (Ill. Rev. Stat. 1989, ch. 30, par. 504) and the Senior Citizens and Disabled Persons Property Tax Relief and Pharmaceutical Assistance Act (Senior Citizens Act) (Ill. Rev. Stat. 1989, ch. 67½, par. 403.07). He further notes that, under section 104(a)(1) of the Internal Revenue Code, gross income specifically excludes “amounts received under workmen’s compensation acts as compensation for personal injuries or sickness” (26 U.S.C.A. § 104(a)(1) (West 1988)).

Initially, we note that section 706.1 of the Marriage Act governs the withholding of income in order to secure payment of support. The definition of income found therein is intended to define the term for the purposes of that section only; there is no indication that it is intended to define the term for any other purpose of the Marriage Act.

As for respondent’s argument that we should look to the definitions of “income” contained in other Illinois statutes and the Internal Revenue Code, we do not find these authorities persuasive regarding the issue before us. “[S]eparate acts with separate purposes need not define similar terms in the same way, but, rather, the same words may mean one thing in one statute and something different in another, depending upon the connection in which the word is used, the object or purpose of the statute and the consequences which probably will result from the proposed construction.” (Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154.) Review of the statutes cited by respondent reveals that their purposes are widely divergent from the purposes of the Marriage Act.

Section 3 of the Principal and Income Act provides that that act governs the ascertainment of income and principal in cases where a trust is established. (Ill. Rev. Stat. 1989, ch. 30, par. 503.) The purpose of the Senior Citizens Act, as set forth in section 2, is to provide incentives to senior citizens and disabled persons in the areas of the acquisition and retention of private housing and to ease their property tax burden. (Ill. Rev. Stat. 1989, ch. 67½, par. 402.) With regard to the Internal Revenue Code, we consider it plainly evident that that Federal statute has a purpose different from the purpose of the Illinois Marriage Act. Not only do these statutes have different purposes, but, in addition, we cannot find in them any statements to indicate that their scope extends to the issues before us. In summary, it is clear that the aforesaid acts relied upon by respondent each have a purpose separate and distinct from each other and from the Marriage Act. Accordingly, they provide no assistance to us in revealing the meaning of “income” as utilized by the legislature in the Marriage Act. We find the statutory definitions invoked by respondent to be irrelevant to the issues before us.

Section 510(a) of the Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)) allows for modification of a child support order upon a showing of a substantial change in circumstances. In deciding whether to modify a support order, the court must consider the same factors it weighs under section 505 of the Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 505) when it formulates an original support order. (In re Marriage of Lyons (1987), 155 Ill. App. 3d 300, 305.) Section 505 establishes a right of the court, incident to a marital dissolution, to impose on parents the obligation of child support and establishes various guidelines for determining the amount of child support. One of these guidelines provides that the court should determine a supporting parent’s “net income,” which is defined in section 505(a)(3) as “the total of all income from all sources,” minus certain specified deductions. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3).) Resolution of the issue raised by respondent requires us to determine whether his worker’s compensation award falls within the scope of this statutory definition of net income.

The rules of statutory construction require this court to determine and follow the intent of the legislature’s acts. It is a cardinal rule of construction that the intent and meaning of a statute are to be determined from the entire statute, and all its sections are to be construed together in light of the general purpose and plan, the evil intended to be remedied and the object to be obtained. If the language is susceptible of more than one construction, the statute should receive the construction that will effect its purpose rather than defeat it. (Klier v. Siegel (1990), 200 Ill. App. 3d 121, 124.) Application of these principles persuades us that respondent’s lump-sum settlement payment should be included in his net income.

We note, first of all, that section 102 of the Marriage Act provides in relevant part that the Act shall be liberally construed and applied to promote its underlying purposes, one of which is to make reasonable provisions for minor children during and after litigation. (Ill. Rev. Stat. 1989, ch. 40, par. 102.) Furthermore, the legislature used broad and inclusive language — “all income from all sources” — to define the scope of a supporting parent’s income, thereby providing a basis for determining the amount of child support. This language leads us to believe the legislature intended the term “income” to be broadly applied. Accordingly, we conclude that the one-time receipt of money from a lump-sum payment of a worker’s compensation settlement comes within the parameters of net income as defined in section 505(a)(3).

Our decision is fortified by section 706.1 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 706.1), which provides for court-ordered withholding of specified amounts of income by a third party in order to secure payment of child support. Whereas section 505 provides that the court shall consider all income from all sources, section 706.1 defines income from the standpoint of periodic payments. In keeping with its intended purpose, section 706.1 provides in part that “ ‘[ijncome’ means any form of periodic payment to an individual, regardless of source, including, but not limited to: wages, salary, commission, compensation as an independent contractor, workers’ compensation.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 706.1(A)(4).) The fact that a worker’s compensation award is contained within the narrower definition of income contained in section 706.1 supports the proposition that a lump-sum worker’s compensation award is contained within the broad definition of income set forth in section 505.

It is illogical to conclude that the legislature intended lump-sum worker’s compensation awards to be excluded from section 505’s broad definition of income because of the periodic payment language contained within section 706.1. To reach this unreasonable result, one must conclude that the legislature intended to require a parent who elects to receive a worker’s compensation award in the form of periodie payments to include the award as income for purposes of meeting his child support obligations, while, at the same time, permitting another parent, merely because he elects a lump-sum worker’s compensation award, to escape the duty of applying the award to his child support obligations. Statutes are to be construed in such a way that they have a reasonable meaning and are accorded an interpretation that will not lead to absurd consequences. Sinnock v. Board of Fire & Police Commissioners (1985), 131 Ill. App. 3d 854, 857.

In arriving at the child support award, the trial judge found that the lump-sum settlement constituted income pursuant to its definition in section 706.1 of the Marriage Act. To arrive at this result, the court concluded that the lump-sum award in a real sense was merely a transformation of the periodic payment award to which respondent was entitled. We have determined that the lump-sum award constituted income as defined in section 505(a)(3) of the Marriage Act. The language of section 706.1 is intended to secure the payment of child support through third parties who are normally obligated to pay income to the supporting parent in the form of periodic payments. Because respondent received the full lump-sum settlement amount from his third-party employer, section 706.1 was an inappropriate vehicle for the purpose of ordering the payment of child support. Nevertheless, having determined that the lump-sum award constituted income, the trial court proceeded to determine the amount of child support pursuant to the standards set forth in section 505(a)(2) of the Marriage Act.

Respondent raises only the issue of whether his lump-sum worker’s compensation award constituted income for the purpose of determining his obligation to pay child support under the Marriage Act. Respondent does not raise, and therefore has waived, the issue of whether the trial court properly determined the specific amount of child support respondent was ordered to pay.

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

Affirmed.

REINHARD, P.J., and NICKELS, J., concur.


author: JUSTICE LEWIS

text:
    MARY LOU McDUFFEE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Swift Eckrich, Appellee).
    Second District (Industrial Commission Division)
    No. 2—91—0212WC
    Opinion filed December 3,1991.
    James M. Ridge, of Perz, Condon & Ridge, of Chicago, for appellant.

      Patrick D. Duffy, of Terrence K. Hegarty & Associates, Ltd., and Anita Senese-Johnson, of Johnson & Drozdzik, Ltd., both of Chicago, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Claimant, Mary Lou McDuffee, filed two applications for adjustment of claim (the applications) pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) for separate injuries allegedly incurred during the course of her employment with the respondent, Swift Eckrich. The first application for adjustment of claim was filed on July 18, 1989, and was assigned No. 89 — WC—33711 by the Industrial Commission. In this application the claimant stated she had had an industrial accident on June 6, 1989, wherein she received injuries to her arm, hand and shoulder. In the second application, filed on August 19, 1989, and assigned No. 89— WC — 38710, the claimant alleged a repetitive trauma injury to her right hand, right shoulder and right elbow. The date of manifestation of the repetitive trauma injury given in her application was February 6, 1987. The two applications for adjustment of claim were considered together by the arbitrator; however, separate decisions were entered. In both of the decisions by the arbitrator, the claimant was denied benefits as the arbitrator found that the claimant failed to prove that she had had an accident. On appeal to the Industrial Commission (the Commission), the Commission adopted the findings and affirmed the decision of the arbitrator. Subsequently, a timely petition for recall was filed with the Commission by the claimant. The Commission issued a corrected decision, and the claimant filed a written request for summons for an appeal of the Commission’s decision in the circuit court within 20 days of receipt of the Commission’s corrected decision. The respondent filed a motion to quash summons, in which the respondent stated the court had no jurisdiction to consider the appeal as the claimant had not filed a timely appeal. The court granted the respondent’s motion and dismissed the claimant’s appeal. The claimant appeals.

The sole issue presented on appeal is whether the circuit court erred in granting the respondent’s motion to quash summons and in dismissing the claimant’s appeal. Because the issue in this case is one of jurisdiction, only those procedural facts pertaining to this issue need be set forth. The arbitrator’s decisions on the claimant’s applications were both entered on March 29, 1990. In the arbitrator’s decision on case No. 89 — WC—33711, in which the arbitrator denied the claimant benefits, the arbitrator found that the claimant failed to prove an accident. In the arbitrator’s findings under whether an accident arose out of and in the course of employment, i.e., an accident, the arbitrator found, “based on the *** testimony of the Company Nurse and the Company Medical Records, that Petitioner sustained a left shoulder injury in the performance of hanging the longer length pepperoni on June 6, 1989.” In the last paragraph of the arbitrator’s findings on accident, he concluded by stating, “with regard to any alleged carpal tunnel syndrome based on repetitive trauma, the Arbitrator finds that the Petitioner failed to prove accident.” The arbitrator went on in his decision to state that “[petitioner is entitled to have and receive from Respondent the sum of $244.80 per week for a further period of 11.75 weeks, as provided in paragraph (e) of Section 8 of said Act, as amended [(Ill. Rev. Stat. 1989, ch. 48, par. 138.8(e))], because the injuries sustained caused a loss of the use of 5 [%] of the left arm. .In support of the Arbitrator’s decision relating to (K) [nature and extent of injury] the Arbitrator finds the following facts.” This statement by the arbitrator appears to have been crossed out, giving rise to the inference that the arbitrator had erred and then corrected his error regarding his finding of permanency. This presumption is supported by the fact that nothing further was said in the arbitrator’s decision regarding the nature and extent of the claimant’s injury, other than a handwritten statement that “[t]he arbitrator finds petitioner failed to prove her claim under section 19b [(Ill. Rev. Stat. 1989, ch. 48, par. 138.19(b))]. Claim for compensation thereunder therefor is hereby denied. This award in no way shall be a bar to a claim for permanency.”

Also in the arbitrator’s decision in case No. 89 — WC—33711, the arbitrator held that the claimant was entitled to the sum of “$0 per week for a period of 0 weeks” for temporary total disability. From these various statements, it appears that the claimant was denied benefits, both for temporary total disability and for permanent disability, because she failed to prove that her injuries arose out of and in the course of her employment. In contrast, at the end of the arbitrator’s decision, he found that the respondent was liable to the claimant for the sum of $2,537.40 for necessary first aid, medical, surgical and hospital services.

In the arbitrator’s memorandum of decision in case No. 89 — WC— 38710, the arbitrator likewise awarded the petitioner “the sum of $0 per week for a period of 0 weeks” for temporary total disability. As in his other decision, the arbitrator found that the claimant “failed to prove she sustained accidental injuries to her right upper extremity on January 23, 1987.” Again, the arbitrator denied the claimant benefits under this claim.

On appeal to the Commission, the Commission entered its decision on both of the claimant’s applications under one decision, No. 90— IIC — 951. When the Commission entered its decision of July 23, 1990, it stated that “[t]he Commission further remands this case to the arbitrator for further proceedings for a determination of a further amount of temporary total compensation, if any, or of compensation for permanent disability pursuant to Thomas v. Industrial Commission, 78 Ill. 2d 326, 399 N.E.2d 1322, 35 Ill. Dec. 794 (1980).” The Commission further stated:

“IT IF [sic] FURTHER ORDERED BY THE COMMISSION that the case is remanded to the arbitrator for further proceedings consistent with this Decision, but only after the later of expiration of the time for filing of a Pewtition [sic] for Summons to the Circuit Court has expired without the filing of such a Petition, or after the time of completion of any judicial proceeding, if such a Petition has been filed.”

In addition to these two statements, the Commission also ordered the respondent to pay the claimant interest under section 19(n) of the Act and fixed the bond for the respondent for appeal to the circuit court at $2,600.

On August 3, 1990, within the 15-day period allowed by statute (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)), the claimant filed a “Petition Pursuant to Section 19(F) of the Illinois Workers’ Compensation Act for Clerical Error in the Decision of Commission.” In the caption of the petition, the claimant listed the case numbers applicable to the petition as “I.C. No. 89 WC 19837” and “I.C. No. 89 WC 38710.” In the body of the petition, the claimant referred to the case Nos. 89— WC — 38710 and 89 — WC—33711. The claimant stated in her petition for recall that the Commission affirmed and adopted the decision of the arbitrator, but that the Commission further remanded this case to the arbitrator for further proceedings for a determination of temporary total disability, if any, or for permanent disability compensation. The claimant asked the Commission to recall its decision and correct the clerical error “with regard to Accident, Temporary Total Disability and Permanent Partial Disability.”

Subsequently, on September 4, 1990, the Commission issued a corrected decision on the claimant’s two applications. In this corrected decision, the sentence pertaining to remand to the arbitrator for further proceedings pursuant to Thomas and the paragraph quoted in its entirety earlier in this opinion were deleted. Following entry of the Commission’s corrected decision on September 4, 1990, the claimant filed a request for summons in the circuit court on September 13, 1990, within the 20-day time period for appeal to the circuit court.

The respondent filed a motion to quash summons, contending that the claimant’s request for summons to issue was not timely filed. The respondent argued-in its motion that the essence of the claimant’s petition was for a rehearing on the merits and not a recall for correction of clerical error. Therefore, the respondent argued that the claimant’s petition for recall was a nullity, and the claimant’s request for summons, filed more than 20 days after the Commission’s decision of July 23, 1990, was not timely. The respondent asked the court to dismiss the claimant’s appeal for lack of subject-matter jurisdiction. The court, in its order of January 28, 1991, granted the respondent’s motion to quash summons and dismissed the claimant’s appeal.

On appeal, the claimant contends that the court erred when it granted the respondent’s motion to quash summons and dismissed her appeal. She argues that her request for summons was within the 20-day period following the issuance of the Commission’s corrected decision and thus was timely filed. Further, she asserts that her petition for recall was not a request for rehearing as the respondent stated in its motion to quash summons but was a request for clarification of the Commission’s order and was a proper petition under section 19(f) of the Act. Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f).

Section 19(f) of the Act provides:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f).)

From the foregoing statutory language, when the Commission enters a corrected decision, as it did here, then the time for appeal to the circuit court commences from the time of receipt of the corrected decision.

The case law has held that the Commission retains jurisdiction until the Commission decides whether to correct its decision, and it is only after the Commission decides on the petition for recall that the Commission’s decision in a case becomes final and appealable. (Menozzi v. Industrial Comm’n (1983), 96 Ill. 2d 468, 451 N.E.2d 853.) However, it has also been held that a petition for recall under section 19(f) is not a vehicle for reconsideration of the case’s merits and for the presentation of further evidence, and if that is what is sought, the petition for recall is a nullity and the time for appeal to the circuit court commences running from the issuance of the Commission’s initial decision. Wilson-Raymond Constructors Co. v. Industrial Comm’n (1980), 79 Ill. 2d 45, 402 N.E.2d 584.

In Menozzi, the supreme court stated as follows:

“A party who is convinced that an order of the Industrial Commission contains a substantial error or inconsistency should be allowed to request a correction, as the statute plainly allows him to do. Such corrections serve the purpose of reducing the number of issues that will be urged for review in the courts, and remove the need for having the circuit court perform the trier of fact’s job of deciding what the error was or how an inconsistency should be resolved. To permit review to go forward before the Industrial Commission acts on such a request frustrates this purpose; we see no reason why the Industrial Commission should not be required to consider and respond to such requests.” (Menozzi, 96 Ill. 2d at 473-74, 451 N.E.2d at 856.)

This reasoning in Menozzi was subsequently applied in Kelly v. Industrial Comm’n (1990), 203 Ill. App. 3d 626, 561 N.E.2d 327, where this court held that a petition under section 19(f) is a proper procedure for seeking clarification of an inconsistency in the Commission’s decision, and that an error in the. Commission’s decision is not limited by whether the error was characterized as “clerical” or “substantive.”

Here, the respondent has characterized the claimant’s petition for recall as a petition for rehearing or reconsideration of the merits. Our reading of the claimant’s petition for recall does not lead us to this conclusion. There was sufficient confusion in the arbitrator’s decisions and the Commission’s subsequent decision to create an inconsistency in the Commission’s decision. A reading of the arbitrator’s decisions leads to the conclusion that the claimant was denied benefits on both of her claims because she failed to prove that her injuries arose out of and in the course of her employment, but the Commission’s decision contained the remand language which implied that the arbitrator granted benefits. The claimant did not seek to have a reconsideration of the merits and did not ask to present farther evidence but sought clarification of what she was being granted or denied. Therefore, while her petition for recall was not technically a request to correct a “clerical error,” but sought clarification of an inconsistency, her petition was not a nullity, and her request for summons was properly and timely filed after receipt of the Commission’s corrected decision.

The respondent has also argued in its appeal that because the claimant listed case No. 89 — WC—19837 and case No. 89 — WC—38710 in the caption of her petition for recall, she has not presented a timely appeal in case No. 89 — WC—33711. This argument is without merit and will not be considered extensively for two reasons. First, the respondent fails to cite any authority in support of its argument. Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) requires citation to authority, and failure to cite authority, when coupled with bare argument, permits this court to disregard the issue. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.) Second, if we determine that the caption of the claimant’s petition for recall limits her appeal, we are placing form over substance. In the body of the claimant’s petition for recall, she specifically states that it is the Commission’s decision in case Nos. 89 — WC—38710 and 89— WC — 33711 which contains the inconsistency. Thus, the miscitation in the caption of the claimant’s petition does not eliminate her appeal of case Nóv 89-WC-33711.

For the foregoing reasons, the judgment of the circuit court of Kane County granting the respondent’s motion to quash summons and to dismiss the claimant’s appeal is reversed, and this cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

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