text:
      In re A.H. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Donald Hobbs et al., Respondents-Appellants).
    Fourth District
    No. 4—90—0753
    Opinion filed July 11, 1991.
    Rehearing denied August 6, 1991.

      Donald E. Hobbs and Caren L. Hobbs, both of Decatur, appellants pro se.

    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On October 5, 1990, the parental rights of respondents Donald and Caren Hobbs to A.H. (bom March 17, 1981), T.H. (born April 17, 1982), and A.H. (hereinafter M.H., using the first initial of her nickname for clarity) (born March 6, 1983), were terminated. Respondents, Donald and Caren, appearing pro se, filed an appeal on October 29,1990. We affirm.

In September 1985, the Department of Children and Family Services (DCFS) received a report alleging the sexual abuse of T.H. by her father, Donald, and a filthy, hazardous home environment. An investigation ensued and, on September 23, 1985, a petition was filed alleging respondents failed to provide the proper or necessary support or other remedial care recognized under State law as necessary for the children. This petition further alleged the children were abused minors because respondents maintained a filthy home which created an environment that was injurious to the health and welfare of the minors. An allegation of sexual abuse by Donald was dismissed from the petition pursuant to an admission of the remaining allegations by respondents. On December 12, 1985, all three children were found to be neglected and abused pursuant to section 2— 3 of the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 3.) On that same date, guardianship was transferred to DCFS.

Thereafter, on April 18, 1986, the dispositional order was modified to allow A.H. to be returned to the custody of Donald and Caren. Respondents regained custody of T.H. and M.H. on October 13, 1986, subject to the continued supervision of DCFS. Donald and Caren were ordered to continue with counseling services and mental therapy was ordered for T.H. Donald and Caren were also ordered to continue cooperating with the homemaker services provided by DCFS. On March 9, 1988, DCFS again removed the children from the custody of respondents because of further allegations of sexual abuse of T.H. and M.H. by Donald. All three minors have been in licensed foster care since that date.

A supplemental petition seeking a finding of unfitness and termination of parental rights was filed on January 19, 1990, alleging respondents were unfit persons pursuant to section 1 of the Adoption Act. (Ill. Rev. Stat. 1989, ch. 40, par. 1501.) Specifically, respondents were alleged to have failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children from them and failed to make reasonable progress toward the return of the children within 12 months of the children being adjudicated neglected and abused minors. After a series of continuances, an adjudicatory hearing was held on April 27,1990.

At the hearing, the State presented several witnesses, the first of whom was Dr. Victor L. Wilson, an expert in the field of pediatrics. Dr. Wilson testified he examined M.H. and T.H. on March 9, 1988. Dr. Wilson conducted a physical examination of M.H. which revealed a tear in her vaginal opening approximately one-sixteenth of an inch long and one-thirty-second of an inch wide. Dr. Wilson testified there was a strong possibility that penetrating sexual abuse occurred to M.H. on one or more occasions at least three weeks prior to the examination. Dr. Wilson also conducted a physical examination on T.H. That examination showed her vaginal opening was unusually reddened and irritated with an abnormal sticky, white discharge. An analysis performed on the discharge revealed a large number of unfamiliar cells but no particular diagnosis of a sexually transmitted disease was made. Dr. Wilson opined these findings were consistent with sexual abuse.

The second witness to testify was Richard Hazen, a Decatur police officer. Officer Hazen interviewed M.H., who told him her father had put his fingers in her vagina on five separate occasions. M.H. told Officer Hazen this caused her pain but her father said she should tell the police it did not hurt, and that she told her mother, who only asked if it hurt. Officer Hazen also interviewed A.H., who started talking about mice when the issue of sexual abuse arose in the conversation. When Officer Hazen attempted to interview T.H., she began crying hysterically and refused to speak to him.

Linda Wolfe, the foster parent for M.H. and T.H., testified she had custody of the two minors from September 1985 until October 1986 and also from August 1988 to the present. She testified that in August 1988, T.H. told her the sexual abuse by her father had occurred again. T.H. told Wolfe that she had told her mother of this incident but that the mother stated “no, that didn’t happen.”

Karen Hazen testified that in 1985 she was a child protection investigator for DCFS and, as such, received and investigated reports of child abuse or neglect. Hazen stated she investigated a report of child abuse of A.H., T.H., and M.H. and subsequently found evidence of abuse and neglect through interviews and police reports. Hazen testified she found evidence of sexual abuse in that T.H. was witnessed fondling her father’s penis in the bathroom of their home. Hazen further testified there was evidence to show the condition of the home was hazardous evidencing environmental neglect.

The next witness to testify was Pam Waterman, also a child protection investigator for DCFS. She testified in 1986, 1987, and 1988 she received information through hotline reports regarding the sexual abuse of A.H., T.H., and M.H. by their father, Donald. There was evidence to support all three allegations. There also were reports that Donald sexually abused his niece and two neighborhood friends of M.H. and T.H.

Daniel Hocking, a psychologist, testified he first became involved with respondents in November 1985. Donald was referred to Hocking by another counselor for testing and a psychological-emotional evaluation. Hocking conducted a series of tests on Donald and concluded Donald had some sociopathic traits which caused him to have difficulty in conscience development. Hocking testified Donald was unable to empathize with other people and was unaware of how his conduct affected others.

DCFS contacted Hocking again in March 1988, to observe A.H., T.H., and M.H. while they played. He testified he observed the children on four separate occasions and noticed some unusual activity. First, Hocking testified that the children, when he initially met them, immediately began telling him their father had not done anything to them and how bad DCFS was. Hocking stated it was unusual for the children to be this open to a stranger and they did not show any emotion other than anger. Finally, Hocking stated when he met individually with M.H., she told him Donald placed his hand between her legs on one occasion and this also occurred several other times while Donald gave her a bath. When Hocking met with A.H., he stated his father was innocent.

In October 1989, Hocking began counseling sessions with Donald and Caren at the request of DCFS and he sees them every other week for therapy. Hocking testified that a primary goal of the counseling was to educate Donald and Caren about the damage caused by sexual abuse. He explained that a person who sexually abused another person must assume responsibility and the first step toward this is to acknowledge guilt. If this is not done, treatment for the problem will be unsuccessful.

In terms of progress toward addressing the sexual abuse, Hocking testified Donald and Caren are at a standstill. He first acknowledged that they were very consistent in keeping their appointments with him and were cooperative and listened to him when he tried to educate them about the effects of sexual abuse. However, he testified he has seen no progress in them toward admitting the truth about the sexual abuse. Both Donald and Caren maintain no sexual abuse occurred. Hocking believed it did occur, and he testified until Donald and Caren acknowledged responsibility for these actions, no progress and treatment could be made.

Jerome Pine testified he was a rabbi for 25 years, has a Ph.D. in counseling psychology and has been in the family therapy practice for approximately five years. He has been Donald and Caren’s counselor for SVz years and the primary issue of this counseling was interpersonal relationships. Pine explained Caren has a dependency relationship with Donald and it was his goal to move that relationship toward equality. Finally, Pine testified the issue of sexual abuse came up during the course of counseling but both Donald and Caren steadfastly maintained their innocence. Inasmuch as they both continued to deny the abuse occurred, Pine felt this area was a nonissue and did not deal with it. However, Pine did acknowledge progress and growth in Donald and Caren’s relationship.

The last three witnesses to testify were the caseworkers assigned to this family by DCFS. Carolyn Wayne worked with this family from September 1985 through August 1987 and again in June 1988 through March 1989. She testified her job duties included creating a client-service plan for the family which set forth the goals to be reached and the necessary steps toward achieving these goals. Although there have been four client-service plans prepared for this family, Wayne testified five basic goals have been included in each plan. These basic goals are (1) maintaining a clean, healthy home environment, (2) working cooperatively with the homemaker in order to develop housekeeping and parenting skills, (3) participation in counseling designed to deal with the issue of sexual abuse, (4) regular visitation with the children, and (5) assumption of responsibility to meet nutritional needs of the children. Wayne testified the only goal consistently met by Donald and Caren while she was their caseworker was the regular visitation with the children. She testified that occasionally Caren showed signs of achieving improved homemaker and parenting skills but she was inconsistent in maintaining those skills. Wayne testified she referred Donald and Caren to a sexual abuse counseling program but they only attended one session and refused to return. Wayne also testified that Caren did not prepare adequate meals for the children and the counseling they were seeking was only for marital problems. Wayne concluded Donald and Caren unsatisfactorily completed all of the goals established by the client-service plans except for the regular visitation with the children.

Robbie Gephart testified she was the caseworker assigned to this family from August 1987 through June 1988. Gephart testified the main goal she established for Donald and Caren was to acknowledge the sexual abuse and to address the issue of the impact on the children. Other goals included the maintenance of a clean home, the development of better parenting skills, and the knowledge necessary to prepare nutritional meals for the children as well as regular visitation with the children. Gephart testified the only goal achieved by Donald and Caren was the regular visitation with the children. She testified on numerous occasions she saw the house in a filthy condition in that there were dirty dishes with moldy food throughout the house, clothing all over the living room floor, and enough debris on the floor to cause her feet to stick when she walked through the kitchen. She also testified about half the time she tried to enter the house, Caren refused to let her in, giving weak excuses for this refusal. Gephart stated Donald and Caren told her they were receiving marriage counseling but no counseling for the sexual abuse.

The final witness for the State was the present caseworker, Terry Current. She stated she has been assigned to this family since March 1989. Current testified the objectives established in the client-service plans she developed included regular visitation with the children, sexual abuse counseling for Donald, cooperation with the homemaker to develop better parenting skills, and the proper activities to engage in during visits with the children. Current testified Donald and Caren maintained regular contact with the children and activities during these visits were appropriate. At first, Current testified, Caren would use these visits to provoke guilty feelings in the children for their failure to call her but after Current spoke with Caren about this unacceptable behavior, Caren ceased speaking in this manner to the children. Current testified Donald and Caren appeared to have a good relationship with the homemaker but she was unsure whether they really were learning better parenting skills from the homemaker or simply mimicking her to give the appearance of progress. Finally, the real problem existed in the lack of sexual abuse counseling. Current testified Caren either refuses to discuss the issue or denies any abuse occurred. Current further testified Donald still denies any abuse occurred, and in her opinion, until Donald admits there is a problem, the children will always be in a risk of harm situation.

Donald Hobbs testified on his own behalf. Donald stated he and his wife were never told that utilizing Jerome Pine as a counselor was inadequate nor were they ever told that if they failed to complete all of the goals of the client-service plans, their parental rights would be terminated. On cross-examination, Donald admitted he had not discussed the issue of sexual abuse with Pine nor has Pine offered any counseling on that subject. Also on cross-examination, Donald testified he would not admit to the sexual abuse and seek counseling if he were told he would lose his parental rights, because he had never sexually abused his children.

The trial court found Donald and Caren unfit for failing to make reasonable efforts to correct the conditions which were the basis for the removal of the children and for failing to make reasonable progress toward the return of the children. A dispositional hearing was held at which Donald and Caren’s parental rights were terminated. At the dispositional hearing, Caren testified she felt it was wrong to have her children taken away and she believed her children wanted to return home. Terry Current testified in her opinion it would be in the best interests of A.H., T.H., and M.H. that all of Donald and Caren’s parental rights be terminated. The trial court found it was in the best interests of the children to terminate the parental rights of Donald and Caren. The court stated it was time to give these children a fresh start, and an opportunity to get into a household hopefully where they could be adopted together and resume a normal family life.

Initially, we must address the State’s argument that this appeal should be dismissed because respondents’ brief fails to comply with Supreme Court Rule 341(e). (134 Ill. 2d R. 341(e).) Reviewing courts may dismiss an appeal where the appellant’s brief fails to comply with supreme court rules applicable to briefs. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) Since Rule 341 is an admonishment to the parties, arid not a limitation upon this court’s jurisdiction, this court may nevertheless consider the merits of a party’s appeal. Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 445 N.E.2d 901.

Respondents’ brief fails to articulate an organized or cohesive legal argument for us to consider. It is not in compliance with Supreme Court Rule 341. This brief cites to pages of the record inaccurately, contains a rambling and incoherent statement of facts and, although four cases are listed under the heading “Points and Authorities,” these cases are not referred to or explained in the argument section of the brief. We note that respondents are appealing pro se, but admonish them that courts will not apply a more lenient standard to them because of this pro se status. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 451, 453 N.E.2d 820, 823.) Nevertheless, because of the serious nature of these proceedings, we will address the merits of the case. Our courts have recognized parental rights and responsibilities are of deep human importance, and thus, will not be lightly terminated. (In re A.T. (1990), 197 Ill. App. 3d 821, 555 N.E.2d 402.) We assume, as did the State in its brief, that respondents contend the trial court’s decision terminating their parental rights was contrary to the manifest weight of the evidence. However, we disagree and affirm the trial court.

A finding of unfitness as the basis for termination of parental rights must be supported by clear and convincing evidence, but will not be disturbed by the reviewing court unless against the manifest weight of the evidence. (In re K.S. (1990), 203 Ill. App. 3d 586, 560 N.E.2d 1380.) Great deference is given to the findings of the trial court since the judge had the opportunity to view the witnesses and evaluate the testimony. In re C.P. (1989), 191 Ill. App. 3d 237, 547 N.E.2d 604.

In order for respondents to make “reasonable progress” toward the return of a child, they must make a minimum measurable or demonstrable movement toward that goal. (In re Boolman (1986), 141 Ill. App. 3d 508, 491 N.E.2d 1.) Whether a small amount of progress is reasonable must be determined with proper regard for the best interests of the child. (In re Edmonds (1980), 85 Ill. App. 3d 229, 406 N.E.2d 231.) The question of what is a reasonable effort involves a subjective judgment based upon the amount of effort which is reasonable for a particular person, while the question of what is reasonable progress is more objective, depending upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. (In re Doolan (1981), 101 Ill. App. 3d 322, 427 N.E.2d 1348.) The benchmark for determining reasonable progress is the situation which triggered the child’s initial removal. In re Bennett (1980), 80 Ill. App. 3d 207, 212, 399 N.E.2d 735, 738.

A determination of reasonableness might well involve considerations of the limitations of the parents, but also would necessarily require consideration of the possibility that the child might be forced to indefinitely reside with the succession of impermanent foster parents. (In re Austin (1978), 61 Ill. App. 3d 344, 350, 378 N.E.2d 538, 543.) Courts must not allow the child to live indefinitely with a lack of permanence inherent in a foster home. (C.P., 191 Ill. App. 3d at 243, 547 N.E.2d at 607.) Once the court finds the parents are unfit, as did the court here, the court can, in determining whether to terminate their parental rights, consider the best interests of the minor. All of the parental rights must yield to the best interests of the child. In re I.D. (1990), 205 Ill. App. 3d 543, 552, 563 N.E.2d 1200, 1206.

The trial court’s finding of unfitness and termination of parental rights was not contrary to the manifest weight of the evidence. The evidence clearly and convincingly established respondents failed to make reasonable progress toward the return of the children within 12 months of their being adjudicated neglected and abused minors, and failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children.

The most compelling evidence is the persistent denial of sexual abuse by both Donald and Caren. Both parents refused to acknowledge any sexual abuse occurred and refused to even discuss the matter with their counselors. Hocking testified that the first step toward dealing with sexual abuse is for the abuser to assume responsibility for his actions. Without that admission, any treatment would be unsuccessful and no progress can be made. A primary goal of all the client-service plans was for respondents to assume responsibility for the sexual abuse and to seek counseling regarding that abuse. Clearly, the refusal to accept that the abuse occurred and the refusal to discuss the matter with their counselor cannot be characterized as reasonable. The sexual abuse of T.H. and M.H. was the condition causing the removal of the children in 1985 and 1988. Donald and Caren have not made any efforts, reasonable or otherwise, to correct this condition. Moreover, the evidence established respondents failed to meet the other goals of the client-service plans. One such goal was for Caren to maintain a clean and healthy home. Robbie Gephart testified she viewed the home between August 1987 and June 1988 and frequently found it in a hazardous, unhealthy condition. Gephart also testified she was denied access to the house approximately half of the time she attempted to check on the condition of the house. The present caseworker, Terry Current, testified that although respondents appeared to have a decent relationship with the homemaker assigned to help them, she had serious doubts whether they believed in the parenting skills being taught or whether they were simply mimicking her in order to satisfy DCFS.

The only goal respondents met was the regular visitation with the children. All of the caseworkers testified respondents kept these appointments with the children or had valid excuses for missing the appointments. However, the quality of these meetings was quite poor. Respondents told the children they would be allowed to return home if they did certain things to appease DCFS. Furthermore, respondents refused to talk about the sexual abuse with their children and, when the children asked about other relatives Donald was accused of abusing, they were told not to mention those names again.

Neither T.H. nor M.H. expressed a desire to return home. A.H. stated he would like to return home but also would like to be adopted with his sisters. All three children have adapted well to foster homes. A.H. refers to another child in his foster home as his little brother. T.H. and M.H. have gained weight since going to their foster home and all three children do exceptionally well in school. All three children have been in therapy for approximately 10 months. Their therapist, Lee Scherzinger, reported T.H. and A.H. are at a standstill in their therapy because of their father’s continual denial of the abuse. Scherzinger reported M.H. has only received supportive therapy as she has less outward signs of distress from being in foster care than do the other two children. Finally, Scherzinger recommended the children not be returned to their parents because of the parents’ lack of motivation to work honestly and expediently to restore the trust of their children and to become a family once again.

This court has previously noted that, although parents visit their children, the refusal to face their shortcomings is a sufficient basis for a trial court to conclude that they have not made “reasonable progress” toward the return of the child. (See Boolman, 141 Ill. App. 3d at 512, 491 N.E.2d at 3; C.P., 191 Ill. App. 3d at 244, 547 N.E.2d at 608.) Respondents’ visitations with their children do not enable them to meet the “reasonable progress” standard when they have failed to make progress in other areas, such as acknowledging the sexual abuse, seeking counseling to alleviate the effect of that abuse, and maintaining a clean and healthy home.

For the foregoing reasons, the decision of the trial court is affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. HUTCHCRAFT, Defendant-Appellant.
    Fourth District
    No. 4—90—0253
    Opinion filed June 28, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On revocation of probation, defendant was sentenced to three years’ imprisonment for burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)), with credit for 149 days served. On appeal, defendant argues he is entitled to additional sentence credit (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b)), and requests remand to the trial court for recalculation of the credit he is due. He maintains he served at least 263 days prior to the date of sentencing on revocation, including time served for contempt of court.

At the outset, we note that the presentence report prepared in this cause stated defendant had spent 118 days in custody in connection with this case. The probation officer’s testimony at sentencing on April 5, 1990, as transcribed in the record on appeal, uses the figure 180 days, though no correction to the presentence report was made. At the conclusion of the sentencing hearing, the judge directed the special prosecutor and defense counsel to “figure up” the amount of sentence credit defendant should receive, stating that if there was a dispute, he would resolve it. The written judgment order credited defendant with 149 days. As this court stated in People v. Compton (1990), 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645, if a defendant is held in custody for any part of a day, he is entitled to credit against his sentence for that day; i.e., in counting days for purposes of sentence credit under section 5 — 8—7(b) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b)), both the first and last days are counted.

I. TIME SERVED IN MAY 1986, AT TIME OF ARREST

On May 5, 1986, defendant was charged by information in this cause, Logan County case No. 86 — CF—28, with the burglary of Adams School, in Lincoln, Illinois. Defendant maintains he was arrested on May 5, 1986, although the record does not definitively show the date of arrest; the bail bond form shows bond was received on May 12, and the form was filed in the circuit clerk’s office and a receipt voucher issued on May 13, 1986. Accordingly, as the first matter on remand, should the court find that defendant was in fact arrested on May 5, given his release on bond on May 12, 1986, he would have been incarcerated for some portion of eight days, and is therefore entitled to eight days’ sentence credit; if arrested on another date, he should be credited accordingly.

II. TIME SERVED AS A CONDITION OF PROBATION

Defendant pleaded guilty to the offense in December 1986. On January 26, 1987, he was sentenced to 30 months’ probation, including a condition that he serve 180 days’ incarceration in the county jail commencing at 6 p.m. that day. Defendant now contends he should be credited 180 days for this period. Had he served the entire 180-day term, he would have been released on July 24, 1987, and he would be entitled to such credit. It appears, however, that he was released early, since on June 2, 1987, the State filed a petition to revoke defendant’s probation or in the alternative to hold him in contempt, alleging that on May 31, 1987, he committed the offense of unlawful consumption of alcohol by a minor (Ill. Rev. Stat. 1985, ch. 43, par. 134a). Defendant is not entitled to 180 days’ credit if he did not serve the full 180 days because of credit for time served. He would receive double credit to rule otherwise. Therefore, as the second item on remand, the parties may present evidence to show the date of defendant’s release from incarceration served as a condition of his probation, and sentence credit shall be calculated to include both the first and last day of incarceration, consistent with Compton. See People v. Scheib (1979), 76 Ill. 2d 244, 251-54, 390 N.E.2d 872, 875-76 (under section 5 — 8—7(b) of the Unified Code (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—7(b)), a defendant must be fully credited for any time spent in jail for a particular offense regardless of whether the time in confinement was considered served as part of a condition of probation; and he should be credited under section 5 — 8—7(b) the same as a defendant who spent time in jail prior to trial because of inability to furnish bail).

III. IF ARRESTED ON JUNE 1987 PETITION TO REVOKE

Defendant appeared in court on June 2, 1987, and was given a copy of the petition to revoke or alternatively to hold him in contempt, and his bond was set. The bail bond form shows bond was made that same day, though the form was filed in the office of the circuit clerk and noted on the docket sheet on June 3, 1987. As defense counsel notes, the record does not show defendant was arrested on the petition to revoke. Hence, as the third matter to be considered on remand, if it is determined that defendant was arrested and taken into custody on the petition to revoke filed June 2, 1987, he should be credited accordingly. On June 24, 1987, the court entered a written contempt order sentencing him to 40 hours’ public service.

IV. OCTOBER 1987 AND NOVEMBER 1988 CONTEMPT ORDERS

On August 4, 1987, the State filed another petition to revoke probation, or in the alternative to hold defendant in contempt, based on defendant’s failure to perform 40 hours’ public service work for contempt.

At hearing on October 1, 1987, the circuit court found defendant in wilful contempt of court based on the August 1987 petition, and entered a written order of judgment and sentence thereon, sentencing him to a term of four days’ periodic imprisonment in the Logan County jail, to commence running on October 5, 1987, at 2:30 p.m. through October 9, 1987, at 7:30 a.m., with daily release from 7:30 a.m. to 2:30 p.m. Defendant now claims he is entitled to five days’ sentence credit herein for these days served for contempt of court.

On August 19, 1988, the State filed yet another petition to revoke defendant’s probation or in the alternative to hold him in contempt, alleging defendant had wilfully failed to report to the probation officer for the months of April, May, June, and July 1988, and had further wilfully failed to advise the probation office of his current address, all in violation of the conditions of his probation. The entry on the docket sheet shows that at the hearing on November 4, 1988, defendant was found in wilful contempt of court and was sentenced to 10 weekends of periodic imprisonment in the Logan County jail beginning Friday, November 11, 1988; the order of periodic imprisonment filed that date stated, however, that defendant had been adjudged guilty of violating probation and sentenced him to 10 weekends’ periodic imprisonment beginning at 6 p.m. that date, with release on Sunday, November 13, 1988, at 6 p.m., and continuing for the following nine weekends.

As the orders were periodic imprisonment, if defendant is entitled to credit in this cause for this time served for contempt of court, he is entitled to credit on the basis of “the duration of its term rather than upon the basis of the actual days spent in confinement.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—1(d); see also Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—2(c); Scheib, 76 Ill. 2d at 254-55, 390 N.E.2d at 876-77.

As to whether defendant is entitled to credit toward his burglary sentence for time served on contempt, no decisions have been cited to us on this point, only defendant’s claim of entitlement to sentence credit.

We find only two cases wherein this court has addressed sentence credit for time served on contempt in the context of claims of entitlement to sentence credit under section 5 — 8—7(b) of the Unified Code. In People v. Sanders (1983), 115 Ill. App. 3d 364, 450 N.E.2d 896, appeal denied (1983), 96 Ill. 2d 548, this court stated the following:

“Defendant argues that under section 5 — 8—7 of the [Code] he is entitled to the credit for the entire amount of time served in the county jail before he pleaded guilty on these charges. He contends that while serving time on the contempt sentence, he was simultaneously in custody on the pending forgery and the residential burglary charges. The effect of simultaneous contempt commitment has not previously been addressed in Illinois decisions, but the Federal courts of appeal have adopted a rule permitting a finding of civil contempt to interrupt a criminal sentence. The State suggests that the rationale for that rule is applicable here.
* * *
We find that defendant is not entitled to credit for the time served on the contempt sentence. This result is consistent with, rather than contrary to, section 5 — 8—7.” (Sanders, 115 Ill. App. 3d at 366-67, 450 N.E.2d at 897-98.)

Four days later in People v. Brents (1983), 115 Ill. App. 3d 717, 450 N.E.2d 910, appeal denied (1983), 96 Ill. 2d 542, this court determined the issue of whether defendant was entitled to sentence credit in connection with his armed robbery sentence for time served for direct criminal contempt of court, imposed as a result of defendant’s unruly conduct in court at a preliminary hearing on the armed robbery charge. There, the sentencing court refused to grant credit for the four-month period of jail time served in connection with the contempt. The Brents court affirmed, reasoning as follows:

“The question before us, then, is whether jail time served concurrently as a result of the charged offense and a subsequent criminal contempt sentence need be credited towards the sentence imposed on the first offense. We think not.
As a general rule, the defendant does not have a fundamental right to credit for time spent in custody prior to sentencing. The effect of section 5 — 8—7(b) is to abrogate the general rule by legislatively granting credit for in-custody time under certain conditions. The justification for the enactment is obvious in a case such as this wherein the defendant’s financial inability to make bail on the charged offense is the reason for his preconviction incarceration. In our opinion, this section of the statute does not mandate crediting of jail time where preconviction incarceration is also the result of a sentencing determination on a contempt-of-court citation. This is so even though the occasion of the defendant’s court appearance resulted from the criminal charge for which he was originally held in custody awaiting trial.
Federal courts, addressing the question before us with respect to analogous civil contempt situations, have consistently ruled that the trial judge has discretionary authority to give credit or not as justice requires under the circumstances. [Citations.] These well-reasoned cases provide ample grounds for holding that the matter of crediting or not the four-month period in question is best left to the sound discretion of the trial court.” Brents, 115 Ill. App. 3d at 720-21, 450 N.E.2d at 913.

Section 5 — 8—7(b) of the Unified Code provides “[t]he offender shall be given credit *** for time spent in custody as a result of the offense for which the sentence was imposed." (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—7(b).) “Offense” is defined in the Criminal Code of 1961 (Code) and the Unified Code (Ill. Rev. Stat. 1989, ch. 38, pars. 2 — 12, 1005 — 1—15). Section 2 — 12 of the Code states “ ‘Offense’ means a violation of any penal statute of this State.” Section 5 — 1—15 of the Unified Code defines “ ‘Offense’ [as] conduct for which a sentence to a term of imprisonment *** is provided by any law of this State ***.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 1—15.) Applying the definition of “offense” as set out in the Unified Code to the credit-for-time-served provision in section 5 — 8— 7(b) of the Unified Code makes it clear that any order for incarceration entered, whether it be revocation, modification, or contempt, defendant is entitled to credit for time served.

In the instant case, we have a situation which is factually distinguishable from Sanders, wherein the civil contempt was for refusing to submit handwriting exemplars as ordered by the court, with one of the charges for which the defendant had been arrested being forgery; Brents, wherein the defendant became unruly in court when appearing on the armed robbery charge; and Anglin v. Johnston (7th Cir. 1974), 504 F.2d 1165, wherein the defendant refused to answer the questions of a State grand jury. Here, the probation department filed forms denominated “Petition to revoke probation, conditional discharge or court supervision, or in the alternative to hold the defendant in contempt.”

Regardless of whether the sentence was imposed for contempt or violating probation, the result is the same. As stated heretofore, the five days’ periodic imprisonment (October 1, 1987) and the 10 weeks of periodic imprisonment (November 4, 1988) were for time served as a result of the offense.

With respect to the November 1988 order, defendant contends he should be granted sentence credit on the basis of the duration of this term of periodic imprisonment, rather than credit only for days spent in jail, relying on statutory provisions (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 7—1(d), 1005 — 7—2(c)) and Scheib (76 Ill. 2d at 254-55, 390 N.E.2d at 876-77). Counting from November 11, 1988, through and including the last day of 10 weekends of imprisonment, January 15, 1989, would amount to 66 days. The defendant is to be credited for 66 days, i.e., the duration of the term, rather than the actual number of days spent in confinement. For the same reasons, he is entitled to five days’ sentence credit for the duration of the term based on the October order.

V. MAY 1989 ARREST ON PETITION TO REVOKE

A final petition to revoke probation, or in the alternative to hold defendant in contempt, was filed on May 11, 1989, alleging that on April 2, 1989, defendant committed the offenses of driving while license suspended and driving under the influence of intoxicating liquor (Ill. Rev. Stat. 1987, ch. 951/2, pars. 6 — 303, 11 — 501). A warrant for defendant’s arrest issued May 12 and was executed on May 15, 1989. Defendant posted bond on May 19, 1989, entitling him to five days’ sentence credit on remand.

CONCLUSION

The judgment of the circuit court of Logan County is affirmed, and cause remanded with directions to take such additional evidence as necessary to determine the sentence credit to which defendant is entitled for time served in this cause, and credit his sentence accordingly: (1) from defendant’s date of arrest in May 1986 to and including his release on bond on May 12, 1986; (2) from January 26, 1987, to and including the date of his release from incarceration imposed as a condition of probation; (3) if defendant was arrested and taken into custody on the petition to revoke filed June 2, 1987, from the date he was taken into custody to and including his release on bond on June 2, 1987; (4) five days’ sentence credit for periodic imprisonment served pursuant to the October 1987 order; (5) 66 days’ sentence credit for periodic imprisonment served pursuant to the order of November 1988; and (6) five days’ sentence credit for time served in May 1989.

Affirmed and remanded with directions.

GREEN and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. LENDABARKER, Defendant-Appellant.
    Second District
    Nos. 2—90—0052, 2—90—0053 cons.
    Opinion filed July 9, 1991.

      Donald J. Ramsell, of Ramsell & Associates, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial conducted in the circuit court of Du Page County, defendant, William J. Lendabarker, was convicted of two felony counts of driving while under influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95%, par. 11 — 501(d)(3)) and sentenced to 30 months’ probation and six months’ imprisonment in the county jail. As a result of his convictions, defendant’s court supervision in a prior, unrelated DUI case was revoked, and a concurrent sentence of one year’s probation and six months’ imprisonment in the county jail, plus a $500 fine, was imposed. We have consolidated defendant’s separate appeals from the felony DUI convictions and the revocation of his court supervision for the prior DUI conviction for purposes of issuing this opinion.

In his appeal from his convictions for felony DUI (No. 2 — 89— 0053), defendant raises the following issues: (1) whether his statutory right to a speedy trial (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5) has been violated; (2) whether the trial court improperly allowed unsworn testimony of a nonparty at a prior unrelated hearing to be admitted in the proceedings on the speedy-trial discharge motion; (3) whether section 11 — 501.4 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 95%, par. 11 — 501.4) denied defendant his constitutional right to confront witnesses against him; (4) whether section 11 — 501.4 of the Vehicle Code impermissibly conflicts with Supreme Court Rule 236(b) (134 Ill. 2d R. 236(b)); (5) whether the admission of defendant’s blood-alcohol test results violated the physician-patient privilege; and (6) whether defendant was proved guilty beyond a reasonable doubt.

Defendant’s appeal from the revocation of his court supervision in the prior DUI case (No. 2 — 89—0052) is based solely on the contention that, if his subsequent DUI convictions are reversed, then the revocation of probation based on the convictions must also be reversed.

The following facts may be adduced from the record. Defendant was placed on court supervision for one misdemeanor count of DUI (Ill. Rev. Stat. 1987, ch. 95^2, par. 11 — 501) on March 1, 1988. This offense forms the basis of the appeal in case No. 2 — 90—0052.

The events leading to appeal No. 2 — 90—0053 then followed. On September 24, 1988, defendant was involved in an automobile accident which resulted in serious injury to Jane Hesse and Elizabeth Senk. Defendant was charged with improper lane usage (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 709) and one misdemeanor count of DUI. Defendant was granted an individual bond (I-bond) and ordered to appear in court on November 1, 1989. This case was assigned case No. 88 — TR—126906.

In a notice of filing dated September 30, 1988, but file stamped October 6, 1988, defendant notified both the circuit clerk and the Du Page County State’s Attorney’s office of his filing of a demand for a speedy trial and a petition to elect treatment as an addict under section 21 of the Alcoholism and Substance Abuse Act (Substance Abuse Act) (Ill. Rev. Stat. 1987, ch. IIIV2, par. 6321). Both the speedy-trial demand and the Substance Abuse Act petition were filed on October 6, 1988. Defendant’s petition under the Substance Abuse Act stated that, if his petition were granted, defendant would waive his right to a speedy trial. Defendant asked the court to conduct a hearing on his petition.

On October 11, defendant filed a motion for substitution of judges based on alleged prejudice against defendant. The motion did not specify which judge was allegedly prejudiced against him.

On October 26, 1988, defendant was indicted for two counts of felony DUI based on the infliction of great bodily harm to Jane Hesse and disfigurement to Elizabeth Senk while driving under the influence of alcohol in case No. 88 — CF—2235. (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(d)(3).) An arrest warrant was issued on this date, and bail was fixed at $25,000. This case was assigned case No. 88 — CF—2235.

On November 1, 1988, defendant’s attorney appeared before Judge Richard A. Lucas on the misdemeanor counts in case No. 88 — TR—126906. The following statements were made at the hearing:

“MR. RUXTON [assistant State’s Attorney]: State’s motion is nolle pros, Judge, all counts.
THE COURT: Big score.
MR. RAMSELL [defense counsel]: Judge, for the record, I will be filing a speedy trial demand before you grant that motion to nolle pros. Thank you, Judge.
MR. RUXTON: Judge, is the motion granted?
THE COURT: Yes.
MR. RUXTON: Has the speedy trial demand been filed?
THE COURT: Worthless. I guess he made it orally, whatever that’s worth.”

The DUI and improper lane usage charges were then dismissed as a result of the State’s decision to nol-pros. However, the prosecutor indicated that the State would proceed with the statutory summary suspension of defendant’s driver’s license. Defense counsel noted that, although defendant was in the hospital and could not be present, the statutory summary suspension hearing could proceed in defendant’s absence. The trial court subsequently found in favor of defendant on the statutory summary suspension question based on the police officer’s failure to appear.

The record reveals that defendant filed another Substance Abuse Act petition for treatment as an addict in case No. 88 — CF— 2235 on December 28, 1988. This petition was apparently a photocopy of the petition filed earlier, but with the misdemeanor case number marked out and replaced by the new case number.

The record indicates that defendant was arrested and appeared in court on case No. 88 — CF—2235 on January 2, 1989. Bail was set at $5,000, and defendant was released on a recognizance bond and ordered to appear in court on January 5.

On January 5, 1989, defendant filed another written speedy-trial demand. The record reveals that on February 2, 1989, the State filed a statement of disclosure to defendant. The State disclosed, inter alia, that it might present certain photographs as evidence and that these photographs could be inspected by making arrangements with the State’s Attorney’s office. The State also disclosed that it might call medical personnel from Central Du Page Hospital and Glendale Heights Community Hospital as witnesses.

The cause was continued to April 10, 1989, on the State’s motion. On April 6, 1989, defense counsel appeared in court to request a continuance. Defense counsel informed the court that he was required to appear in another county for several days beginning Monday, April 10, the date set for trial. The State did not object to the continuance. The trial court ordered that the case be continued to May 8, 1989, and also ordered that the running of the speedy-trial period be tolled until that date.

On April 21, 1989, the State requested a continuance from the May 8, 1989, trial date because of anticipated problems in assembling witnesses. The court continued the case to June 5, 1989, for trial on the State’s motion. On June 5, the State again sought a continuance, and the court continued the case to June 26, 1989, for trial.

On June 6, 1989, the State filed a supplemental disclosure to defendant naming four additional witnesses, all doctors, who might be called to testify for the State. The disclosure listed only the names and addresses of the four doctors, one of whom was Dr. Brown of the Illinois State Police Bureau of Forensic Sciences. On June 16, 1989, the State filed another supplemental disclosure to defendant indicating that the State might call an additional witness, John Steele of the Addison fire department, and introduce into evidence a post-occurrence videotape of the accident scene taken by Steele. On June 20, defendant filed a motion to dismiss the charges against him based on the alleged violation of his speedy-trial rights. Defendant did not request a ruling on the motion at that time.

The parties appeared in court on June 26, 1989, the date set for trial. Defense counsel indicated that he needed a short continuance to review the videotape recently disclosed by the State, but he contended that the time should be charged to the State because of its tardy disclosure. The prosecutor indicated that the State itself only recently learned of the existence of the videotape, and defense counsel was immediately notified that he could view the tape at the State’s Attorney’s office. Defense counsel agreed, but he indicated that he could not have secured an accident reconstruction expert to view the tape in such a short time. The trial court continued the case to June 30, 1989, for status and tolled the running of the speedy-trial period.

At the status hearing on June 30, 1989, defense counsel indicated that he had viewed the videotape. Defense counsel answered ready for trial, but he also indicated that, on his visit to the State’s Attorney’s office the day before, he was told that the State was not in possession of any photographs relating to the case. However, defense counsel subsequently learned that the State did, in fact, possess photographs. Defense counsel asked the court to exclude this evidence, along with the recently disclosed videotape and the testimony of the four doctors, from use at trial. The prosecutor responded that, although defense counsel was erroneously told the day before that there were no photographs, the State’s original disclosure filed February 2, 1989, clearly stated that the State was in possession of photographs.

The trial court stated that there had been no delay by the State in the disclosure of the photographs. As to Dr. Brown, the court stated that it would not charge defendant with any delay needed to prepare for Dr. Brown’s testimony. The prosecutor responded, “[t]hen I won’t use him.” The court then issued an order stating, “Dr. Brown is excluded from testifying in this matter.”

The parties agreed that the question of the adequacy of the State’s disclosure of the other three doctors as potential witnesses should be reserved until trial. Defendant also argued that the sheriff’s department possessed a report indicating that a different individual, John Kosterer, caused the accident. Defendant claimed this report should have been disclosed pursuant to Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. The report has not been made part of the record. The court stated the following regarding the recent discovery of the sheriff’s report:

“THE COURT: When that happens, whose fault is it? It’s not yours as the attorney in charge of the prosecution of the case. It’s not the Defendant’s fault. So, whose fault is it? It’s the [sheriff’s] department’s fault. Well, if it’s the department’s fault, who is chargeable?
As far as [speedy trial] term time is concerned, all I can do — and I realize its designated a nonjury week — but I may be able to get jurors here to be available next week for trial. You both answered ready.
MR. RAMSELL [defense counsel]: Judge, so the record is clear, how many days is Defendant going to be allowed to investigate this Brady material?
THE COURT: From now until the day I set it for trial.”

The trial court indicated that defense counsel previously had sufficient opportunity to examine most of the late-disclosed material. The court then set July 5, 1989, as the trial date and charged the delay to defendant.

On July 3, 1989, the State filed a certificate of impairment and a notice of appeal from the trial court’s order excluding Dr. Brown from testifying. On October 12, 1989, this court entered a docket order granting the State’s motion to dismiss its appeal. A copy of this order was filed in the record of the instant case on October 16, 1989. On October 20, 1989, the defendant appeared without counsel, and the prosecutor requested that the case be dismissed. The court entered an order granting the State’s motion to nol-pros the charges against defendant.

On October 24, 1989, the State filed an information charging defendant with two counts of felony DUI based on the same incident supporting the prior indictment. On that day, the State indicated it would proceed against defendant under a new case number, No. 89 — CF—2388. Defense counsel argued that, based on People v. DeBlieck (1989), 181 Ill. App. 3d 600, 537 N.E.2d 388, the State’s refiling of the charges should not be allowed because it constituted harassment, bad faith, and fundamental unfairness. The trial court issued a summons ordering defendant to appear on October 26. On October 25, 1989, defendant was reindicted on two counts of felony DUI.

On October 26, 1989, the State filed its response to the motion to dismiss, based on an alleged speedy-trial violation, filed by defendant in the prior case. The State contended that the running of the speedy-trial period had been tolled by the filing of both defendant’s motion for a substitution of judges and his petitions for treatment as an addict under the Substance Abuse Act. The State also argued that defendant was hospitalized and unable to proceed to trial during the entire pendency of the original misdemeanor DUI prosecution. According to the State’s calculations, only 150 days had run on the speedy-trial term.

At a hearing held October 26, 1989, defense counsel continued to maintain that the State should not have been allowed to refile the charges. The State indicated that it was ready either to argue defendant’s motion to dismiss or to proceed to trial immediately. The parties then addressed which periods should be charged against the defendant for speedy-trial purposes. The trial court reserved its ruling on the issue.

The record reveals that, on October 30, 1989, the State filed a copy of the report of proceedings from a November 7, 1988, hearing in case No. 87 — TR—130063. The State also filed the affidavit of Assistant State’s Attorney Craig J. Chval stating that the defendant in the instant case was also the defendant in case No. 87 — TR— 130063. The report of proceedings indicates that defendant’s father appeared at the November 7, 1988, hearing, and indicated that defendant had been in the hospital for the past six weeks.

At a hearing held November 6, 1989, the trial court denied defendant’s motion to dismiss for violation of the speedy-trial statute. The court noted the filing of defendant’s motion for substitution of judges and Substance Abuse Act petition and also the fact that he was in the hospital on November 1, 1988. The court held that, because defendant was unavailable for trial during the misdemeanor proceedings, none of this time would be counted toward computation of the speedy-trial period. The court allocated the following periods to the speedy-trial period:

Period Days

1/02/89 to 1/05/89 3

1/05/89 to 4/06/89 91

5/08/89 to 6/26/89 49

10/16/89 to 10/26/89 10

TOTAL 153

The court then continued the case to November 27, 1989, for trial. The court tolled the running of the speedy-trial statute until that time based on the State’s inability to present a witness who had recently given birth. See Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(c).

At a hearing held November 17, 1989, on defendant’s motion to suppress evidence, defendant asked the court to reconsider its earlier speedy-trial ruling. No motion is contained in the record, but the report of proceedings indicates that defendant tendered a handwritten motion. The trial court denied defendant’s motion to suppress and reserved its ruling on the motion to reconsider the denial of defendant’s speedy-trial motion to dismiss. The court denied the motion to reconsider on November 22, 1989.

The case was continued on defendant’s motion to January 8, 1990, for trial. On January 2, 1990, a hearing was held on defendant’s motion in limine to exclude blood-alcohol tests. The motion does not appear in the record. At the hearing, defendant argued that section 11 — 501.4 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.4), which allows the introduction of medical records as a business-records exception to the rule against hearsay, impermissibly conflicts with Supreme Court Rule 236. The court took the matter trader advisement.

On January 8, 1990, the court denied defendant’s motion in limine to exclude the blood-alcohol tests. On January 9, 1990, the court conducted a partially stipulated bench trial. The parties first presented their agreement that, in return for defendant’s stipulation to most of the evidence, the State would recommend a sentence of 30 months’ probation conditioned upon alcohol counseling and six months’ imprisonment in the Du Page County jail without day-for-day credit. The prosecutor also stated that, under the agreement, the defendant’s court supervision in a related case, No. 87— TR — 130063, would be revoked and a similar concurrent sentence imposed.

The court then heard the testimony of Dr. Phillip Brottman, an attending physician at Glen Oaks Hospital Emergency Department. Dr. Brottman, testifying for the State, said that he treated defendant for multiple injuries on September 24, 1987, and that he ordered defendant’s blood to be drawn for purposes of testing. Dr. Brottman explained the normal process by which such blood samples are tested by hospital personnel and the results entered in the patient’s medical records. Dr. Brottman identified People’s exhibit No. 5 as a copy of a typical reporting slip recording different lab results, including blood-alcohol tests, compiled in the normal course of emergency room treatment. The witness testified the lab test results in People’s exhibit No. 5 revealed that defendant’s blood-alcohol content was 272 milligrams per decile.

On cross-examination, Dr. Brottman testified that he did not observe the blood-alcohol test of defendant’s blood and did not know who performed the test. He further testified that, although lab test results are usually entered into a patient’s emergency room face sheet, defendant’s blood-alcohol test results were not entered into his face sheet. Dr. Brottman had no personal knowledge as to when he placed People’s exhibit No. 5, the blood-alcohol test result, into defendant’s chart. The court received People’s exhibit No. 5 into evidence under the medical-records exception in section 11 — 501.4 of the Vehicle Code.

Defendant then stipulated that the State’s witnesses would testify to the following events. On September 24, 1988, defendant was driving his automobile at a high rate of speed and weaving from lane to lane on Route 64 when he crossed the center line and collided head-on with a vehicle driven by Jane Hesse, who suffered severe injuries as a result of the accident. A paramedic summoned to the scene smelled alcohol on defendant’s breath. The paramedic, a sheriff’s deputy at the scene, and a nurse at the hospital where defendant was taken all were of the opinion that defendant was under the influence of alcohol. Elizabeth Senk, who was also injured in the accident, sustained a “flap injury” to the head which required sutures. The scar from the injury is permanent and cannot be completely removed, even with plastic surgery.

The trial court found defendant guilty on both counts of felony DUI and imposed the agreed-upon sentence.

On January 16, 1990, the parties presented an agreed disposition of the State’s petition to revoke defendant’s prior court supervision. The prosecutor stated that, “pursuant to the facts and the findings of guilty” in the stipulated bench trial on the felony DUI counts, defendant’s supervision would be revoked and he would be sentenced to one year’s probation with six months’ imprisonment in the Du Page County jail to run concurrently with the prior sentence. The court revoked defendant’s supervision and imposed the agreed-upon sentence.

Defendant’s first argument on appeal in case No. 2 — 90—0053 is that his statutory right to a speedy trial has been violated. As an initial inquiry in this regard, we must determine the date on which defendant’s demand for a speedy trial was effectively filed for purposes of computing the running of the statutory speedy-trial period.

Noting that the filing of a speedy-trial demand with the circuit clerk does not give the State constructive notice of such a filing (People v. Jones (1981), 84 Ill. 2d 162, 169, 417 N.E.2d 1301), the State contends that defendant failed to notify the State of the speedy-trial demand he filed October 6, 1988. However, the notice of filing which accompanied the speedy-trial demand clearly states that notice thereof was sent to both the circuit clerk and the office of the State’s Attorney, and both the notice of filing and the demand were file stamped October 6, 1988. Absent any evidence of nonreceipt presented by the State, we find that defendant’s speedy trial demand was effectively filed on October 6, 1988.

We now examine whether defendant was brought to trial within the prescribed period. Section 103 — 5(b) of the Code of Criminal Procedure of 1963 provides that persons on bail or recognizance shall be tried within 160 days of the date defendant demands trial unless the delay is occasioned by the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) This statutory provision implements the right to a speedy trial guaranteed by the United States and Illinois Constitutions, although the protections of the constitutional and statutory provisions are not necessarily coextensive. (People v. Bowman (1990), 138 Ill. 2d 131, 136, 561 N.E.2d 633.) The speedy-trial statute is to be construed liberally, and each case is to be decided on its own facts. (Bowman, 138 Ill. 2d at 136-37, 561 N.E.2d at 636.) On a motion to dismiss for violation of the statutory right to a speedy trial, the defendant bears the burden of establishing a speedy-trial violation. The trial court’s ruling on a motion to dismiss is entitled to much deference and will be sustained absent a clear showing that the court abused its discretion. Bowman, 138 Ill. 2d at 137, 561 N.E.2d at 636.

At issue here is the question of what periods of pretrial delay were occasioned by defendant. For purposes of a speedy-trial question, a delay is chargeable to the accused where his act in fact causes or contributes to the delay. (Bowman, 138 Ill. 2d at 140, 561 N.E.2d at 637.) The State concedes that 153 days are attributable to the State for purposes of computing the speedy-trial period. The dispute here centers about the proper allocation of four separate periods of pretrial delay.

The first period is the 26 days between October 6, 1988, and November 1, 1988. The State contends that the running of the speedy-trial period did not commence with the filing of the speedy-trial demand on October 6, 1988, for several reasons. First, the State notes that defendant also filed a petition for treatment under the Substance Abuse Act on October 6, and the State argues that the filing of the petition tolled the running of the statute. Second, the State contends that, because defendant was in the hospital, he could not have proceeded to trial anytime during the period at issue. Therefore, the State argues, the delay is at least partially attributable to the defendant. Finally, the State also argues that defendant’s motion for substitution of judges on October 11, 1988, also tolled the running of the statutory period.

Defendant’s petition for treatment, which was apparently made under the former version of the Substance Abuse Act allowing for treatment before conviction (Ill. Rev. Stat. 1985, ch. IllV2, par. 6322 (amended by Pub. Act 85 — 498, eff. Jan. 1, 1988)), waived defendant’s rights to a speedy jury trial and specifically requested a hearing on the petition. The delay caused by a defendant’s filing of motions is ordinarily chargeable to the defendant. (People v. Jones (1984), 104 Ill. 2d 268, 277, 472 N.E.2d 455.) The defendant is charged with the time naturally associated with processing the motion, including the time necessary for the State to respond and that necessary for the court to hear and decide the issues raised. (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 637-38, 410 N.E.2d 677.) Here, the speedy-trial period did not commence on October 6, 1988, because that same day defendant filed a petition under the former version of the Substance Abuse Act waiving his right to a speedy jury trial and asking for a hearing. The filing of defendant’s motion for substitution of judges also was sufficient to toll the statute when it was filed on October 11, 1988. People v. Helton (1987), 153 Ill. App. 3d 726, 730, 506 N.E.2d 307.

Defendant argues, however, that the filing of the Substance Abuse Act petition and the motion for substitution of judges did not in fact lead to a delay chargeable to him because the State nolprossed the charges on November 1, 1988, and no hearing was held on the petition. Thus, defendant contends, because the State’s decision to nol-pros the charges made it unnecessary for the court to address the petition and the motion, no delay was caused by their filing. However, in People v. Donalson (1976), 64 Ill. 2d 536, 542, 356 N.E.2d 776, the supreme court rejected such reasoning as “faulty.” Rather than focusing on the disposition of the defendant’s motion, the court in Donalson held that the important consideration is that “[t]he mere filing of the motion eliminated the possibility that the case could be immediately set for trial.” (Donalson, 64 Ill. 2d at 542, 356 N.E.2d at 778.) Here, too, the filing of the motion and the petition made it impossible to set the case for trial before resolving the motions.

We conclude that the trial court did not abuse its discretion by charging the period between October 6, 1988, and November 1,

1988, to defendant as a result of his filing of a motion for substitution of judges and a Substance Abuse Act petition. This conclusion makes it unnecessary for us to address the State’s suggestion that this time is chargeable to defendant because he was hospitalized and unable to go to trial. Similarly, we need not address defendant’s contention that the trial court erroneously relied on the transcripts of proceedings compiled in another case to establish that defendant was, in fact, hospitalized during the period in question.

The second period at issue is the four days between April 6, 1989, and April 10, 1989. Defendant contends that, although the trial court charged him with the entire delay between April 6, 1989, and May 8, 1989, he should only be responsible for the period beginning on April 10,1989.

We agree. The case was continued on the State’s motion to April 10. Defendant’s attorney came into court on April 6 to seek a continuance because he was required to appear in another case on April 10. There is no reason for the trial court to have charged the delay from April 6, when defendant requested the continuance, to April 10, the date set for trial. To do so would punish the defendant for coming into court ahead of time to inform the court of the conflict. Since the actual delay chargeable to defendant did not begin until April 10, when his attorney was engaged in another trial, we find that these four days were improperly excluded from the speedy-trial computations. At this point in our calculation, then, the total of the speedy-trial period is 157 days.

The third period at issue is the seven days between June 26, 1989, to July 3, 1989. Defendant answered ready for trial on June 26, 1989, but also asked the court for a continuance so that he could review a videotape which the State had disclosed on June 16, 1989. The matter was continued to June 30, 1989, when defendant again answered ready but sought time to investigate the contents of a sheriff’s report which he said he had recently discovered. The trial court continued the matter until July 5, 1989, for trial and charged the entire seven-day delay to defendant.

Defendant argues that he was not responsible for the late discovery of the videotape and that, therefore, the delay necessary for examination of the videotape should not be charged to him. Defendant seeks to ascribe this period to the State even though the record shows that the State was diligent in informing defendant of the videotape, which had been in the possession of the fire department, once it was discovered by the State. Defendant was informed 10 days before trial that the videotape had been discovered and could be viewed at any time. Defendant stated he needed additional time only because he could not secure an expert to examine the videotape, and it was defendant who requested the continuance for this purpose. This situation is really no different than if defendant himself had recently discovered new evidence and asked for a continuance to evaluate it; under such circumstances, the delay would certainly not be charged to the State. (See People v. Turner (1989), 128 Ill. 2d 540, 551-54, 539 N.E.2d 1196.) We believe that the trial court did not abuse its discretion in charging defendant with the continuance he requested to examine the videotape.

Thus, defendant was properly charged with the delay commencing June 26, 1989, and running through June 30, 1989, the date the trial court set for a status hearing. While defendant objected to this delay being charged to him, he did not disagree with the trial court’s decision to set the matter for status, rather than trial, on June 30. The continuance for a status hearing on June 30 eliminated the possibility that the case could be set for trial that day, so the period of delay chargeable to defendant must extend beyond June 30. (See Donalson, 64 Ill. 2d at 542, 356 N.E.2d at 778.) The trial court set the matter for trial on the next available date, July 5. However, the State’s subsequent filing of its interlocutory appeal on July 3 tolled the running of the speedy-trial period as of that date. In total, then, the seven days between June 26, 1989, and July 3,1989, were properly charged to defendant.

Having concluded that defendant was properly charged with the delay up to July 3, 1989, it is unnecessary for us to address defendant’s separate contention that, because of the State’s failure to disclose certain photographs on the day arranged and because of defendant’s discovery of an undisclosed sheriff’s report on June 30, the State is responsible for the delay between June 30 and July 3. Because it was already necessary to schedule the matter for a trial date subsequent to the June 30 status hearing, neither the late discovery of the sheriff’s report nor the failure to receive the photographs on the day arranged had any bearing on the period of delay. Defendant remains chargeable with the delay through July 3.

Additionally, the record, which does not contain the sheriff’s report itself, reveals that defendant’s attorney had already reviewed the report by June 30 and was effectively given until the July 5 trial date to investigate it. Even if we assume, arguendo, that the sheriff’s report constituted Brady material subject to disclosure by the State, defendant does not contend that the time allowed was insufficient for investigation of the report. (See People v. Lovitz (1976), 39 Ill. App. 3d 624, 631, 350 N.E.2d 276.) As for the photographs of the scene of the accident which were mistakenly not turned over to defendant at the time arranged, the trial court correctly noted that the photographs had been disclosed to defendant months earlier. Any delay necessitated by defense counsel’s need to inspect the photographs at such a late date was properly attributed to defendant rather than the State.

The fourth and final period at issue is the 3x/2-month period between the July 3, 1989, filing of the State’s notice of appeal of the order excluding Dr. Brown’s testimony to the October 16, 1989, filing in the trial court of the appellate court order noting the State’s voluntary dismissal of the appeal. We note that, even though the prosecutor agreed not to use Dr. Brown’s testimony in the face of the trial court’s indication that a continuance would be charged to the State, the court nonetheless did enter an order excluding Dr. Brown from testifying. Though not precisely a suppression of evidence, this order had the same substantive effect and was, on its face, subject to appeal by the State. See People v. Phipps (1980), 83 Ill. 2d 87, 90-91, 413 N.E.2d 1277.

Defendant concedes that, under Supreme Court Rule 604(a)(4) (134 Ill. 2d R. 604(a)(4)), the time during which an appeal filed by the State is pending is not counted for purposes of determining whether defendant’s speedy-trial rights have been violated. However, defendant contends that the State’s appeal here was not taken in good faith and, therefore, should not have tolled the running of the statutory period. Defendant’s contention is based on three essential elements: (1) that the State’s appeal was subsequently abandoned; (2) that there was no reason for the State to appeal the exclusion of Dr. Brown’s testimony, which the State itself had agreed to, except to toll the running of the statute; and (3) the fact that the State knew that the case could not be brought to trial within the one-week remaining on defendant’s speedy-trial demand because the period expired in a nonjury week.

In People v. Jones (1984), 104 Ill. 2d 268, 472 N.E.2d 455, the supreme court expressly declined to address the question of whether an appeal would not toll the running of the speedy-trial period if it were brought by the State in bad faith. (Jones, 104 Ill. 2d at 284, 472 N.E.2d at 462.) The court stated, however, that the subsequent dismissal of the State’s appeal is not in itself an indication that it was not brought in good faith. (Jones, 104 Ill. 2d at 284, 472 N.E.2d at 462.) In any event, Jones did not explicitly establish any “bad-faith exception” to the clear and unequivocal provision in Supreme Court Rule 604(a)(4) that the speedy-trial period does not run during the pendency of the State’s appeal. To the contrary, the supreme court has stated that it must “rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case” in assessing the appealability of a pretrial suppression order. (People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501.) The exception which defendant asks us to en-graft upon Supreme Court Rule 604(a)(4) would effectively modify the rule. We decline to take such an action without a more explicit directive from the supreme court.

We, therefore, conclude that, pursuant to Supreme Court Rule 604(a)(4), the delay during the pendency of the State’s appeal is not counted toward the speedy-trial period. The only period the trial court incorrectly ascribed to the defendant, then, was the four-day period between April 6, 1989, and April 10, 1989. However, the addition of these four days brings the speedy-trial term to only 157 days, which is within the prescribed 160 days. Thus, the trial court correctly concluded that defendant was brought to trial within the time required by section 103 — 5.

Defendant’s next contention is that section 11 — 501.4 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.4) unconstitutionally denied him his sixth amendment right to confront witnesses against him. Section 11 — 501.4 of the Vehicle Code allows written blood-alcohol test results to be admitted under certain circumstances in DUI and reckless homicide prosecutions as a form of the business-records exception to the rule against hearsay. Section 11 — 501.4 provides, in pertinent part, as follows:

“§11 — 501.4. Admissibility of written blood alcohol test results conducted in the regular course of providing emergency medical treatment, (a) Notwithstanding any other provision of law, the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11 — 501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961, when each of the following criteria are met:
(1) the blood alcohol tests were ordered by a physician on duty at the hospital emergency room and were performed in the regular course of providing emergency medical treatment in order to assist the physician in diagnosis or treatment;
(2) the blood alcohol tests were performed by the hospital’s own laboratory; and
(3) the written results of the blood alcohol tests were received and considered by the physician on duty at the hospital emergency room to assist that physician in diagnosis or treatment.” Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.4.

Defendant notes that this provision allows the introduction of blood-alcohol tests, which constitute hearsay, without the supporting testimony of the medical personnel who actually tested the blood. Defendant contends that the failure to allow him to confront and cross-examine such personnel violates his sixth amendment right to confront witnesses against him. U.S. Const., amend. VI.

While a literal interpretation of the confrontation clause of the sixth amendment would bar the use of any out-of-court statement when the declarant is unavailable, the Supreme Court has rejected this view as unintended and too extreme. The confrontation clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant. (Idaho v. Wright (1990), 497 U.S. 805, 813, 111 L. Ed. 2d 638, 651, 110 S. Ct. 3139, 3145.) A two-step process, first set forth in Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, is utilized when determining whether hearsay may be admitted in a criminal prosecution without offending the confrontation clause. First, in the usual case the prosecution must either produce or demonstrate the unavailability of the declarant whose statement is to be used against the defendant. Second, once a witness is shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more if the evidence falls within a firmly rooted exception to the rule against hearsay. Wright, 497 U.S. at 814-15, 111 L. Ed. 2d at 651-52, 110 S. Ct. at 3146.

As for the first prong of the Roberts test, it should be noted that a showing of the declarant’s unavailability is not always required in order to introduce an out-of-court statement into evidence. (United States v. Inadi (1986), 475 U.S. 387, 394, 89 L. Ed. 2d 390, 398, 106 S. Ct. 1121, 1125.) This is true when the utility of trial confrontation is remote. (Roberts, 448 U.S. at 65 n.7, 65 L. Ed. 2d at 607 n.7, 100 S. Ct. at 2538 n.7.) It is generally recognized that persons making business records are unlikely to recall the details of specific transactions, indicating that their testimony will be of little or no value. (See E. Cleary, McCormick on Evidence §311 (2d ed. 1972).) The same could be said of emergency room personnel compiling the results of blood-alcohol tests for the use of the treating physician; records compiled for use in making life-and-death decisions carry an inherent degree of reliability. (See E. Cleary, McCormick on Evidence §313 (2d ed. 1972).) Thus, in the context of the particular dimension of the business-records exception manifested in section 11 — 501.4 of the Vehicle Code, reliability would not be materially enhanced by requiring the State to demonstrate the unavailability of the persons who compiled the medical record.

As for the second prong of the Roberts test, it is clear that the business-records exception to the rule against hearsay is firmly rooted in the law. (United States v. Ray (9th Cir. 1990), 920 F.2d 562, 566, amended on rehearing (9th Cir. 1990), 930 F.2d 1368; see also People v. Smith (1990), 141 Ill. 2d 40, 78, 565 N.E.2d 900; 32B Am. Jur. 2d Federal Rules of Evidence §204, at 584 (1982).) This is sufficient, without more, to infer reliability. (Wright, 497 U.S at 815, 111 L. Ed. 2d at 652, 110 S. Ct. at 3146.) Defendant argues, however, that section 11 — 501.4 does not possess a number of the requirements of the traditional business-records exception, specifically that: (1) the person compiling the record is unavailable as a witness; (2) the entry was made in the regular course of business; and (3) the maker of the record was under a duty to make such a record. In essence, defendant argues that section 11 — 501.4 is so dissimilar to the traditional business-records exception that it is, therefore, not a firmly rooted hearsay exception sufficient to support an inference of reliability.

As discussed above, most jurisdictions do not require a strict showing that the maker of the business record is unavailable to testify, so the fact that section 11 — 501.4 does not contain such a requirement does not represent a departure from the traditional business-records exception which is firmly rooted in the law. Moreover, section 11 — 501.4 requires that the blood-alcohol test be ordered by the physician in the “regular course of providing emergency medical treatment” and that it be performed by the hospital’s own laboratory. (Ill. Rev. Stat. 1989, ch. 95^2, par. 11 — 501.4.) This is substantially similar to the requirements of Illinois’ generally applicable business-records exception applicable in criminal prosecutions. See Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5.

Defendant makes much of the fact that Illinois has heretofore not allowed medical records to be included within the business-records exception in criminal (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 5(cXl)) or civil (134 Ill. 2d R. 236(b)) proceedings. However, this is almost uniformly not the case in other States. (See generally M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.11, at 658 (5th ed. 1990).) As a matter of Federal constitutional law, this is the more relevant focus in determining whether the exception is to be considered “firmly rooted” in the law. Section 11— 501.4, which represents a limited facet of the traditional business-records exception to the rule against hearsay, is sufficiently similar to the common-law rule that it, too, can be viewed as firmly rooted. We conclude that section 11 — 501.4 does not unconstitutionally deny defendants their sixth amendment right to confront their accusers.

Defendant next contends that section 11 — 501.4 of the Vehicle Code is invalid because it conflicts with Supreme Court Rule 236(b) (134 Ill. 2d R. 236(b)), which provides that medical records shall not be admissible under the business-records exception. Defendant correctly notes that, where a legislative enactment directly and irreconcilably conflicts with a rule promulgated by the supreme court, the rule will prevail. (People v. Felella (1989), 131 Ill. 2d 525, 538, 546 N.E.2d 492.) Rule 236, however, is applicable in only civil, not criminal, proceedings. (134 Ill. 2d R. 1, Committee Comments.) Section 11 — 501.4, on the other hand, applies to criminal prosecutions, so there is no conflict between the statute and the rule in this criminal case.

Defendant’s final two contentions on appeal are that the admission of the defendant’s blood-alcohol test violated the physician-patient privilege (see Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.4(b)) and that he was not proved guilty beyond a reasonable doubt of felony DUI. Defendant explicitly recognizes in his brief however, that both of these contentions are premised on the assumption that this court would find section 11 — 501.4 of the Vehicle Code invalid. As we have found the statute to be valid, defendant’s final two arguments fail by their own terms.

Defendant’s sole contention in his appeal from the revocation of his court supervision in case No. 2 — 90—0052 is that, if his felony DUI convictions are set aside, then there is no basis upon which the trial court could have revoked his court supervision in case No. 2 — 90—0052. However, because we here affirm defendant’s convictions in case No. 2 — 90—0053, this argument is necessarily rejected.

The judgments of the circuit court of Du Page County in case Nos. 2 — 90—0052 and 2 — 90—0053 are affirmed.

Affirmed.

NICKELS and DUNN, JJ., concur.