text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALPHONSO POLLARD, Defendant-Appellant.
    Third District
    No. 3 — 90—0371
    Opinion filed March 12, 1992.

      Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

A jury convicted the defendant, Alphonso Pollard, of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(b)(1)). The trial court sentenced him to a 24-year prison term. The defendant appeals.

The record shows that the victim, S.Y., was 10 years old at the time of the offense. The defendant, S.Y.’s mother’s boyfriend, was living with them. According to S.Y., during a weekday in July of 1989 she was showering when the defendant entered the shower, picked her up, and stuck his “private parts” in her. Later that same day, the defendant was playing with S.Y. and her sister. He tied their hands with curtain cord. When S.Y. began hopping upstairs, the defendant picked her up, took her into her mother’s room, pulled down S.Y.’s pants and again “stuck his private parts in [hers].” S.Y. testified that her mother was at work when these incidents occurred.

S.Y. further testified that the defendant had vaginally penetrated her on four previous occasions. On three of the four occasions, S.Y.’s mother was at work. On the other occasion, her mother was asleep on the couch. According to S.Y., she first told her mother about the abuse after the defendant moved out of the house in July of 1989. “About three or four days” later, in September of 1989, S.Y. told Phyliss Dewitt after Dewitt showed a movie at school about good and bad touches. S.Y. told Dewitt the defendant had touched her in the shower. About a week later, S.Y. told Kelly Gott, a Department of Children and Family Services (DCFS) worker, that the defendant had touched her in the shower. S.Y. later went to the hospital and told Dr. Jack Whitney about the incident in the shower. At the hospital, S.Y. also told police officer Robin Turner what the defendant had done to her. A few days later, S.Y. told police officer Victor Puscas what the defendant had done to her on the weekday in July.

S.Y. testified that she did not tell anyone about the incidents sooner because she was embarrassed and because she was afraid of the defendant. She had heard the defendant tell her mother that when he was a gang member, he had cut off women’s breasts and private parts, that he had once killed a man, and that he used to put firecrackers in cats’ butts. S.Y. further testified that she had seen the defendant throw things at her mother and that he had sprained her mother’s arm and bruised her face.

DCFS Investigator Kelly Gott testified that on September 21, 1989, S.Y. told her that in July of 1989 the defendant had vaginally penetrated her in the shower and again later that same day when he tied her hands with curtain rope.

Police officer Robin Turner testified that on September 23, 1989, S.Y. told him that the defendant had “stuck his penis in her” about 2½ months before.

Dr. Jack Whitney testified that he examined S.Y. at the hospital on September 23, 1989. She complained that the defendant had been sexually assaulting her over a one-year period. The most recent assault had occurred when the defendant had tied her hands with socks and then penetrated her vagina with his penis. Dr. Whitney also recalled S.Y. telling him about the defendant sexually assaulting her in the shower. Dr. Whitney’s examination revealed that S.Y.’s hymen had been perforated and she had a gaping vulva. In Whitney’s opinion, repeated penetration of the vaginal opening during sexual intercourse would produce the gaping of the vulva.

S.Y.’s mother, S.A., testified that the defendant began living with her in January of 1987. After S.A. moved in September of 1988, the defendant continued to live with her “on and off.” S.A. described the beginning of her relationship with the defendant as good, but noted that toward the end they engaged in physical fighting in front of S.Y. S.A. obtained an order of protection against the defendant in April of 1989. The following week the couple got back together. S.A. stated that the defendant then continued to live with her in May, June, and July of 1989. S.A. made a final break with the defendant in the middle of July 1989, after he threatened to kill S.A. and her children while he recklessly drove them around in a car.

S.A. further testified that S.Y. told her about the shower incident about one or two months after the defendant had moved out of the house. S.Y. also told S.A. that the defendant had sexually assaulted her again, shortly after she got out of the shower. S.A. did not call the police, but told S.Y. to tell a teacher at school about this. S.A. also testified that S.Y.’s behavior had changed after the defendant had lived with them for about a year and a half. S.Y. no longer cared about her personal appearance, did not want to bathe or go to bed, and sometimes wore extra clothes to bed even when it was not cold. Her grades dropped and she began eating more.

Phyliss Dewitt testified that following the showing of a film about child sexual abuse to S.Y.’s class on September 20, 1989, S.Y. told her that the defendant had fondled S.Y. when she was in the shower. A hearing was held prior to trial at which Dewitt was qualified to testify as an expert in the field of child sexual abuse accommodation syndrome, a form of post-traumatic stress disorder. At trial she testified that she had interviewed S.Y. and her mother, and that she had reviewed police and medical reports. In Dewitt’s opinion, S.Y. exhibited behavior consistent with a child who had been sexually abused.

The defendant’s sister, Freddie Pollard, testified that the defendant lived with her continuously from the beginning of June 1989 until September 1989.

Shorron Moore, the defendant’s cousin, testified that in July of 1989, the defendant came to his house every morning between 9 and 9:30. He and the defendant spent the days doing things together. In May, the defendant lived around the corner from Moore with a woman named Angela Randall.

Anthony Pollard, the defendant’s brother, testified that S.A. telephoned him after the defendant was arrested in November of 1989. She told Pollard that she knew S.Y. lied a lot and disliked the defendant.

The defendant testified and denied ever sexually assaulting S.Y. He asserted that after S.A. obtained an order of protection against him in April, he moved in with a former girlfriend, Angela Randall, until the first week in June. He then moved in with his sister and stayed with her until his arrest in September. He denied babysitting for S.Y. during May, June, or July. He stated that he spent nearly every day of those months with his cousin, Shorron. During July, the defendant worked afternoons and evenings at a health care center. Also during July, he saw S.A. two or three times a week and occasionally had sex and stayed overnight with her.

The State introduced evidence of the defendant’s prior convictions for burglary, possession of cocaine, and attempted obstructing justice. The jury subsequently found the defendant guilty of aggravated criminal sexual assault.

On appeal, the defendant first argues that his conviction for aggravated criminal sexual assault should be reversed because the victim and her mother testified about other crimes committed by the defendant. Specifically, he complains that the evidence that the victim heard the defendant tell her mother that as a gang member he mutilated women, abused cats, and killed a man was irrelevant. He asserts that the failure to give a limiting instruction concerning how this other crimes evidence was to be used exacerbated the error. He also argues that the victim’s mother’s testimony about his attempt to kill her family was improper.

Both an objection at trial and a post-trial motion are necessary to preserve an issue for review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) An objection to evidence on specific grounds waives all other grounds. (People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837.) When a defendant cross-examines a witness about allegedly improper testimony, he waives any alleged error in the testimony. (People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) A defendant waives any issue as to the impropriety of evidence if he procures, invites, or acquiesces in the admission of evidence. (People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669.) A complaint about improper jury instructions must be raised in the trial court or it is waived. People v. Regains (1989), 187 Ill. App. 3d 713, 543 N.E.2d 1090.

In the instant case, the defendant failed to object to any of S.Y.’s testimony he now complains of on appeal. Furthermore, when he did move to strike testimony about prior incidents involving S.Y. and incidents involving the defendant’s alleged violence toward S.A., the defendant did not object to the complained-of testimony.

We also note that some of the complained-of testimony was the result of the cross-examination of S.Y. when she testified three times that she did not report the sexual assaults because she was afraid of the defendant. Thus, the defendant invited her redirect testimony explaining her fear of the defendant.

The defendant also did not tender a jury instruction limiting the use the jury should make of this evidence. The general instruction on the limited use of other crimes evidence was amended with the defendant’s approval to apply only to evidence of other crimes committed against the victim, S.Y. Therefore, the defendant has waived the right to complain about the testimony S.Y. gave or the failure to give a limiting instruction about the use to be made of this evidence.

The defendant also complains of S.A.’s testimony about his alleged attempt to kill her and her family. He did not object at trial or tender a jury instruction limiting the use to be made of the testimony and did not include the issue in his post-trial motion. He has therefore waived the issue.

The defendant next complains that reversible error occurred when Phyliss Dewitt was allowed to testify that S.Y. suffered from post-traumatic stress syndrome as a result of child sexual abuse. He contends that “child sexual abuse accommodation syndrome” (CSAAS) is not a recognized and accepted form of post-traumatic stress syndrome; that Dewitt was not a qualified expert and an adequate foundation was not laid for her testimony; and that the prejudicial effect of her testimony far outweighed its probative value.

Initially, we address the defendant’s contention that CSAAS is not a recognized and accepted form of post-traumatic stress syndrome. We note that the cases the defendant cites for this proposition are out-of-State cases. We decline to follow these and choose instead to follow the well-reasoned decisions of our Fifth and Fourth District Appellate Courts in People v. Nelson (5th Dist. 1990), 203 Ill. App. 3d 1038, 561 N.E.2d 439, and People v. Wasson (4th Dist. 1991), 211 Ill. App. 3d 264, 569 N.E.2d 1321, which recognized CSAAS as an accepted form of post-traumatic stress syndrome. Therefore, we find that evidence which is properly presented concerning this syndrome in child sexual abuse cases is admissible.

As aforesaid, the defendant also argues that Phyliss Dewitt was not properly qualified as an expert witness and an adequate foundation was not laid for her testimony. We disagree.

It is well settled that the adequacy of an expert witness’ qualifications is left to the sound discretion of the trial judge. (People v. Knox (1984), 121 Ill. App. 3d 579, 459 N.E.2d 1077.) The indicia of expertise is not a given level of academic qualifications, but whether the expert has knowledge and experience beyond the average citizen which would assist the jury in evaluating the evidence. Whether the specialized knowledge is acquired through education, training, experience, or a combination of each, if the witness possesses such knowledge, she may testify. People v. Steffens (1991), 208 Ill. App. 3d 252, 566 N.E.2d 985.

In the instant case, the defendant asserts that Dewitt was not qualified to testify as an expert because she was unable to name studies which had accepted CSAAS as a reliable concept and because her only formal education with regard to child development was obtained in high school.

The record reveals that at the time Dewitt testified she had been employed by Tri-County Womenstrength in their sexual assault program for over a year. This organization helps victims of sexual assault, domestic violence, and elderly abuse. She was a high school graduate and was attending college working toward a bachelor’s degree in social work. She had taken college courses in crisis intervention that dealt with sexual abuse. She had completed an extensive list of seminars and training programs which dealt with sexual abuse. The list is long, and we find it unnecessary to recite each pertinent seminar; however, we note that included in the list was a seminar that described signs to look for in sexually abused children. Dewitt had also presented workshops and taught seminars on sexual abuse for police officers and social workers.

Additionally, Dewitt was a foster mother specializing in sexually abused children. Of the approximately 67 foster children she had had in her home in the last four years, about 55 had been sexually abused. She testified that those children had been placed in her home because she had extensive training in the area of child sexual abuse and had a specialized sexual abuse home. Dewitt had also served on the State and regional advisory boards of the Department of Children and Family Services. She testified that she had talked to hundreds of victims of sexual abuse. She had talked to family members about how children react before, during, and after sexual abuse. She also testified that she had reviewed hundreds of publications on child sexual abuse and had spoken with educators and child psychologists and psychiatrists about child sexual abuse. We find that Dewitt’s qualifications as an expert in the area of child sexual abuse were more than adequate, and the trial court did not abuse its discretion in qualifying her as an expert.

With regard to the defendant’s contention that an adequate foundation was not laid for Dewitt’s testimony, again, we disagree.

Dewitt identified CSAAS, described its characteristics, and stated her opinion that it was a form of post-traumatic stress syndrome. She further testified that CSAAS had been identified in several books and it was recognized by several agencies, including Psychological Associates and Lutheran Social Services, both located in Peoria. Dewitt testified to all the characteristics exhibited by victims of child sexual abuse. She then testified to S.Y.’s changed behavior and explained why it was consistent with child sexual abuse. She was thoroughly cross-examined by defense counsel regarding the basis of her knowledge of S.Y.’s changed behavior and the basis of her opinion. We also note that the defendant did not present any evidence to establish that CSAAS is not a recognized form of post-traumatic stress syndrome. (See People v. Wasson (1991), 211 Ill. App. 3d 264, 569 N.E.2d 1321.) We therefore find that an adequate foundation was laid for Dewitt’s testimony.

The defendant also contends that Dewitt’s testimony should have been excluded because its prejudicial effect outweighed its probative value. He argues that Dewitt’s testimony was, in essence, testimony that the defendant was guilty of sexually assaulting S.Y.

We agree with the State’s citation to People v. Wasson (1991), 211 Ill. App. 3d 264, 569 N.E.2d 1321. The Wasson defendant advanced the same argument as does the instant defendant. The Wasson court noted that the purpose of section 115—7.2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115—7.2) is to provide for the admission of the treating expert’s testimony concerning the victim’s behavior as being consistent with known syndromes. However, it does not preclude the triers of fact from weighing the expert’s testimony and credibility, or obligate them to accept the expert’s opinion.

In the instant case, Dewitt testified to her training and qualifications and then to the indicators of sexually abused children. She then opined that S.Y. displayed characteristics which were consistent with a child who had been sexually abused. Defense counsel tried to undermine Dewitt’s qualifications and to establish that S.Y.’s behavior could have been due to domestic violence. Thus, the jurors were informed that they were not required to accept Dewitt’s testimony. As in Wasson, we do not find Dewitt’s testimony to have unduly prejudiced the defendant. We therefore hold that the evidence was properly admitted.

The defendant next argues that the trial court erred when it did not allow him to impeach S.Y. with a prior inconsistent statement that she had given to Officer Victor Puscas. In support of his argument, the defendant points out that on cross-examination, S.Y. was asked what she told Officer Puscas. S.Y. responded that she told him “about the one in July” and did not tell Puscas about any other times. Thereafter, the defendant sought to introduce the testimony of Officer Puscas which the defendant contended would impeach S.Y.’s testimony. In an offer of proof, Puscas testified that when he interviewed S.Y. he asked her about the last time she was sexually assaulted. She told him the defendant had assaulted her after she got out of the shower, dried herself, and got dressed. She did not tell Puscas anything about the defendant assaulting her in the shower. The trial court excluded Puscas’ testimony, ruling that it was improper impeachment.

It is proper to refuse to allow impeachment of a witness with a prior statement when the prior statement is consistent with the witness’ testimony at trial. People v. Petty (1987), 160 Ill. App. 3d 207, 513 N.E.2d 486.

An examination of S.Y.’s statement reveals that it was consistent with her trial testimony. Puscas asked S.Y. when she was last abused. S.Y. responded that it was after she got out of the shower. She merely failed to tell Puscas that the defendant had sexually assaulted her twice that same day, once earlier in the shower. Her response to Puscas’ question was in no way inconsistent with her testimony at trial wherein she stated that on the same day in July the defendant had sexually assaulted her once when she was in the shower and later in her mother’s bedroom. Therefore, the trial court did not err by excluding Puscas’ testimony.

Finally, the defendant contends that the trial judge abused his discretion in sentencing him to a 24-year prison term. He argues that the sentence was not proportionate to the nature of the offense committed and was not commensurate with his rehabilitative potential.

Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) When mitigating evidence is before the trial judge, he is presumed to have considered it absent some indication, other than the severity of the sentence itself, to the contrary. (People v. Garrison (1991), 209 Ill. App. 3d 979, 568 N.E.2d 943.) Included among the factors a trial judge may consider when imposing sentence for a sexual offense is the psychological impact of the offense on the victim. (People v. Edwards (1990), 195 Ill. App. 3d 454, 552 N.E.2d 358.) A trial judge may properly impose a greater sentence on a defendant who has prior convictions. People v. Hall (1985), 134 Ill. App. 3d 961, 481 N.E.2d 290.

In the instant case, there were serious aggravating factors present. S.Y., the young victim, testified that the defendant, who lived with her mother, had sexually assaulted her five times between the fall of 1988 and July of 1989. Substantial evidence was introduced to establish the severe effect the abuse had on S.Y.’s life. Additionally, the defendant had an extensive record of convictions starting as a juvenile. Finally, the evidence introduced at trial showed that the defendant had physically assaulted S.Y.’s mother on several occasions and had had an emergency order of protection entered against him. Under the facts of this case, we find no abuse of discretion in the defendant’s 24-year sentence.

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

Affirmed.

McCUSKEY and HAASE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE ex rel. GWEN MARTIN, Director, Department of Labor, Plaintiff-Appellant, v. IRIS LIPKOWITZ, Adm’r of the Estate of Seymour Lipkowitz, Deceased, et al., Defendants-Appellees.
    Third District
    No. 3 — 91—0088
    Opinion filed March 12, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Jack Schwartz, of Rock Island, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Action was brought in two counts by the Director of the Illinois Department of Labor (the Director) on behalf of five former employees of the now defunct La Salle County Packing Company, Inc., to recover unpaid vacation leave benefits (count I) and statutory penalties (count II). The complaint, filed in the circuit court of La Salle County on February 8, 1990, charged violations of the Illinois Wage Payment and Collection Act (111. Rev. Stat. 1987, ch. 48, par. 39m — 1 et seq.) (IWPCA) which allegedly occurred during the period January 13, 1983, through January 12, 1984. According to the complaint, defendants Rudolph Lipkowitz and Ronald Press and Seymour Lipkowitz, deceased, were directors and principal officers of the corporation during that period. Attached to the complaint are copies, inter alia, of correspondence between representatives of the Illinois Department of Labor and Ronald Press and Seymour Lipkowitz following an August 8, 1984, hearing with respect to wages due the employees. These documents tend to establish that the employer conceded that vacation pay was owed and that such would be paid when the La Salle County Packing Company’s real estate was sold or leased.

Defendants moved to dismiss the complaint for failure to bring suit within five years pursuant to section 13—205 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—205). The Director resisted the motion on the ground of governmental immunity. The trial court disagreed with the Director’s position. The court found that the complaint was based on a private, rather than public, cause of action and granted defendants’ motion to dismiss.

In this appeal, the Director argues that the rights she is asserting on behalf of these employees belong to the general public, not just a handful of employees. Where public rights are sought to be vindicated by the State, common law governmental immunity applies and no statute of limitation (unless expressly provided for in legislation creating the cause of action) may be asserted so as to bar the State’s suit. (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874.) Defendants contend that since the statute here at issue permits aggrieved employees to pursue their own claims (111. Rev. Stat. 1987, ch. 48, par. 39m —11), the “public rights” asserted by the Director co-exist with “private rights,” and the five-year limitation of the Code of Civil Procedure would therefore apply so as to bar the Director’s cause of action.

The question before us appears to be one of first impression insofar as it pits the doctrine of governmental immunity from statutes of limitation against the five-year statute of limitations of the Illinois Code of Civil Procedure in a suit brought under the IWPCA by the Director of the Department of Labor. We find ample relevant authority, however, to guide us.

The doctrine of governmental immunity from statutes of limitations was cogently analyzed by Illinois Supreme Court Justice Seymour Simon in City of Shelbyville, where defendant argued that, inasmuch as the doctrine of sovereign immunity has been disavowed in Illinois, the doctrine of governmental immunity from statutes of limitations should no longer be a viable theory either. The court disagreed, stating:

“[T]he doctrine of immunity from statutes of limitation '*** is supported in modem law by the policy judgment that the public should not suffer because of the negligence of its officers and agents’ in failing to promptly assert causes of action which belong to the public. (State ex rel. Board of University & School Lands v. Andrus (8th Cir. 1982), 671 F.2d 271, 274, rev’d on other grounds sub nom. Block v. North Dakota ex rel. Board of University & School Lands (1983), 461 U.S. [273], 75 L. Ed. 2d 840, 103 S. Ct. 1811; see also Guaranty Trust Co. v. United States (1938), 304 U.S. 126, 132, 82 L. Ed. 1224, 1228, 58 S. Ct. 785, 788-89; United States v. Central Soya, Inc. (7th Cir. 1982), 697 F.2d 165, 166; 34 Am. Jur. Limitation of Actions secs. 388 through 399, and particularly at page 301 (1941).) In accord with the rationale, the practice in Illinois has been to determine whether the right which the plaintiff governmental unit seeks to assert is in fact a right belonging to the general public, or whether it belongs only to the government or to some small and distinct subsection of the public at large. [Citations.]
The question of who would be benefited by the government’s action and who would lose by its inaction is of paramount importance in statute-of-limitations immunity cases ***. ***
*** Inasmuch as citizens who share a public right which has been violated may be unable in certain cases to bring suit on their own behalf while the government has a representative interest in the controversy [citations], abolition of the government’s immunity from limitations defenses would expose these citizens to the harsh consequences of neglect by officials over whose actions they had no control. Long delays by the government in instituting suit, of course, cause harm to the defendant and are in the interest of no one; however, we are unwilling to change a well-established rule of law so as to leave citizens who have suffered an injury remediless or make them wait until the next election for their ‘remedy.’ ” 96 Ill. 2d at 461-63, 451 N.E.2d at 876-77.

At issue in Shelbyville was the municipality’s interest in the proper construction and repair of certain streets in defendant home builder’s subdivision. Although defendant argued that the interest was “private,” the court on appeal held that it was “public.” The Shelbyville court reasoned:

“It is apparent that the safety of all persons who have occasion to use the streets at issue here will depend on the workmanlike construction and maintenance of these streets. Insofar as it is the continuing responsibility of cities to ensure such construction and maintenance for the use of the public (Ill. Rev. Stat. 1969, ch. 24, par. 9—1—1 et seq.), the inability of the city of Shelbyville to enforce its annexation agreement or compel payment by the defendant will affect the city’s finances and may impair its ability to build or oversee the construction or maintenance of streets within its jurisdiction in the future.” 96 Ill. 2d at 464, 451 N.E.2d at 878.

In the case before us, the question we must answer is whether the public interest in enforcing the IWPCA is sufficient to permit the Director to pursue its claims against the employer without regard to statutory time-barring. Although not cited by either party, we note that the court in Clark v. Western Union Telegraph Co. (1986), 141 Ill. App. 3d 174, 490 N.E.2d 36, held that the aggrieved employee who brought suit under the Act for underpaid sales commissions was limited by the applicable period of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13—101 et seq.). Clark argued, inter alia, that section 14(a), which provides that “[e]ach day during which any violation of this Act continues shall constitute a separate and distinct offense” (Ill. Rev. Stat. 1987, ch. 48, par. 39m—14(a)), should be read so as to toll the period of limitations until the employer paid the indebtedness in question. The court rejected the argument, stating:

“We note that plaintiff’s interpretation of the Act would negate the statute of limitations in all cases of disputed compensation. We do not believe that the legislature intended so far-reaching a result. Section 14 specifically addresses misdemeanor penalties, and the Act provides separately for the preservation of civil claims by aggrieved employees. (Compare Ill. Rev. Stat. 1977, ch. 48, par. 39m—14, with Ill. Rev. Stat. 1977, ch. 48, par. 39m—11.) We hold that the continuing violation provision of section 39m—14 applies to actions brought by the Department of Labor, and that civil suits by aggrieved employees are governed by the limitations provisions of the Code of Civil Procedure. (See Ill. Rev. Stat. 1983, ch. 110, pars 13—101 et seq.)” 141 Ill. App. 3d at 177, 490 N.E.2d at 38.

The governmental immunity argument, obviously, was not presented in Clark, but we take note of the opinion because it appears to recognize that actions brought under the Act by the Director may be analyzed differently than actions initiated, as in Clark, by employees in their individual capacity. The distinction between a suit brought to enforce employees’ rights by a governmental entity and one brought by an individual employee was addressed directly in People ex rel. Martin v. Schwartz Oil Field, Services, Inc. (1990), 203 Ill. App. 3d 903, 561 N.E.2d 201. There, the Director sued to recover unpaid overtime pay pursuant to section 12(b) of the Illinois Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1012(b)) (IMWL). The IMWL, like the IWPCA, provides for suit either by the aggrieved employee or by the Director. The legislative scheme there, however, explicitly provides for a three-year limitation period for individual suits (section 12(a)), and is silent with respect to any limitation period for suits brought by the Director (section 12(b)). On appeal, the Director argued both that the legislative intent was not to apply the three-year limitation period to actions under section 12(b) and that common law governmental immunity to statutes of limitation applied. The court agreed with both arguments. The court’s rationale with respect to the latter is particularly instructive for our purposes today:

“The purpose of the IMWL is to ensure adequate wage standards for the benefit of both workers and the taxpayers, and a violation of the law is a breach of public policy. (Ill. Rev. Stat. 1987, ch. 48, par. 1002.) The State has a clear and definite interest in enforcing this policy.” 203 Ill. App. 3d at 907, 561 N.E.2d at 203.

Similarly, it has been held that the primary purpose of the IWPCA “is to ensure employees receive all earned benefits upon leaving their employer and the evil it seeks to remedy is the forfeiture of any of those benefits.” (Mueller Co. v. Department of Labor (1989), 187 Ill. App. 3d 519, 524, 543 N.E.2d 518, 521.) Obviously, enforcing the public policy underlying the IWPCA inures to the benefit of Illinois workers and taxpayers in precisely the way that the IMWL does. An employer’s denial of benefits earned by its employees burdens the State financially and socially, such as by decreasing the tax base and potentially depleting State assistance funds. Moreover, we believe that by authorizing the Director to prosecute civil actions for unpaid benefits and penalties (Ill. Rev. Stat. 1989, ch. 48, par. 39m — 11) and to expend State resources to enforce the Act the legislature thereby expressed its intent to benefit the public generally. Thus, notwithstanding the legislature’s silence with respect to any limitation period under the IWPCA, we do not hesitate to find that the public has a clear and definite interest in enforcing the IWPCA, and that the “right” the Director seeks to vindicate in an action brought on behalf of aggrieved employees belongs to the public. Based on this finding, we further hold, as in Schwartz, that suits brought by the Director under the IWPCA are immune from statutory limitation periods of the Civil Practice Act.

The judgment of the circuit court of La Salle County is reversed, and we remand this cause for further proceedings.

Reversed; cause remanded.

SLATER and GORMAN, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JESSIE L. MERRITTE, Petitioner-Appellant.
    Third District
    No. 3 — 91—0583
    Opinion filed March 12, 1992.
    Dan Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The petitioner, Jessie L. Merritte, was convicted of unlawful possession of a controlled substance and sentenced to 14 years’ imprisonment. He appealed, and we affirmed his conviction and sentence. (People v. Merritte (3d Dist. 1990), No. 3—89—0543 (unpublished order under Supreme Court Rule 23).) He subsequently filed a post-conviction petition which was dismissed by the trial court as frivolous and patently without merit. He now appeals that order.

The petitioner’s pro se post-conviction petition was filed on July 18, 1991. At a hearing on August 6, 1991, at which the petitioner and an assistant prosecutor appeared, the State orally moved to dismiss the petition and presented arguments in support of its position. The court found the post-conviction petition to be frivolous and patently without merit “based on the reasons stated by Counsel in his argument and based on the further statement by the Court.”

The only issue raised by the petitioner on appeal is whether this cause must be remanded for appointment of counsel and for further proceedings under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.). Specifically, the petitioner contends that this cause must be remanded because the trial court improperly considered the State’s oral motion to dismiss and its arguments on that motion, within 30 days after he filed his post-conviction petition.

The State concedes that it should not have been permitted to raise an oral motion to dismiss, nor should it have been allowed to argue that motion, within 30 days of the filing of the petitioner’s post-conviction petition. It notes that the trial judge’s determination at that stage is to be made without input from either side. (People v. Ramsey (1985), 137 Ill. App. 3d 443, 484 N.E.2d 555; People v. Alexander (1985), 136 Ill. App. 3d 1047, 483 N.E.2d 1039.) However, the State argues that the trial court’s order should be affirmed in light of our recent decision in People v. Mitchell (1991), 218 Ill. App. 3d 401, 578 N.E.2d 297.

In Mitchell, the State filed a motion to dismiss prior to the trial court’s determination that the petitioner’s post-conviction petition was frivolous and patently without merit. On appeal, we held that the mere filing of the motion to dismiss did not contaminate the process and preclude the trial court from independently determining whether the post-conviction petition had any merit. We found that the trial court’s decision was not improperly tainted because the State had never argued its very brief motion to dismiss before the court. Further, we noted that the trial court in no way relied on the State’s motion to dismiss when it determined that the post-conviction petition was frivolous and patently without merit. People v. Mitchell (1991), 218 Ill. App. 3d 401, 578 N.E.2d 297.

The facts in the instant case are quite different from those in Mitchell. Here, the State argued its motion to dismiss at length before the court. Further, the court specifically stated that the dismissal of the post-conviction petition was based, at least in part, on the reasons presented by the State in its oral argument. Unlike Mitchell, the trial court’s decision in the case at hand was improperly tainted by the State’s premature input. Therefore, the dismissal order must be reversed and the cause remanded.

The State next argues that if the cause is to be remanded, the 30-day time limit contained in the statute should be considered tolled by the petitioner’s appeal and this cause should be remanded for new findings under section 122—2.1 of the Act (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.1). The petitioner, on the other hand, contends that the cause should be remanded for consideration and appointment of counsel pursuant to sections 122—4 through 122—6 of the Act (Ill. Rev. Stat. 1989, ch. 38, pars. 122—4 through 122—6).

Section 122—2.1(b) provides that “[i]f the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122—4 through 122—6.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(b).

In the instant case, we note that because of the State’s premature input, the petition was not properly dismissed pursuant to section 122—2.1. We further note that remanding for a new finding under section 122— 2.1 would subject the petitioner to undue delay resulting from the State’s misconduct. Additionally, remanding for consideration under section 122—2.1 may not rectify the undue advantage the State gained by virtue of having been able to present its arguments prematurely. Accordingly, the petition should be docketed for further consideration under sections 122—4 through 122—6. Ill. Rev. Stat. 1989, ch. 38, pars. 122—4 through 122—6.

The judgment of the circuit court of La Salle County is reversed and the cause is remanded for further consideration.

Reversed and remanded.

STOUDER and SLATER, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE N. WOODS, Defendant-Appellant.
    Second District
    No. 2 — 90—0365
    Opinion filed March 4, 1992.
    ehearing denied April 8, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, and James W. Buckley and James E. Wallis, both of Law Offices of James E. Wallis, of Granite City, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford, and Joseph V. Roddy, of Law Offices of Joseph V. Roddy, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Following a bench trial in the circuit court of Winnebago County, the court convicted defendant, Joe N. Woods, of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—3(a)). The court subsequently sentenced him to nine years’ imprisonment. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt of residential burglary and that he did not knowingly and understanding^ waive his right to a jury trial. We affirm.

Darrell Price and his family returned from a camping trip at 9 a.m. on June 18, 1989, to discover that their house had been broken into. Entry had been gained through a bedroom window on the north side of the house. A jewelry box, some guns and some change kept in a fish bowl were missing. Price found a trail of change leading from the bedroom out the window, through the backyard and beyond a fence at the rear of the backyard. At trial, Price stated that he knew the defendant, who lived down the street from him. Defendant had never been inside Price’s home, but it was possible that he had been near the outside of his home at times prior to the burglary. In fact, Price had seen defendant in the yard next door to his house on the south side less than nine days before the offense.

Police investigating the burglary discovered that the lower section of a double-hung window had been broken out. Broken glass was found on the ground outside the house. Officer John Genens opined that the glass had been taken out of the lower frame and placed on the ground by the perpetrator.

Defendant was arrested and charged by information with the burglary. On August 9, 1989, defendant’s counsel filed a motion to appoint a psychologist to determine defendant’s fitness to stand trial. The court granted the motion and appointed Frederick McNelly, Ph.D., to examine defendant.

At the subsequent fitness hearing, McNelly testified that defendant had a history of mental illness and was taking psychotropic medication on August 9, 1989. He found that defendant suffered from multiple substance abuse and schizophrenia disorganized. These conditions manifested themselves by an emotionally disturbed personality with irrational thinking. Defendant suffered from free flow thought disorders and had difficulty following a conversation.

McNelly further testified that defendant’s mental capability was in the very low, borderline handicapped range. His functional IQ was in the low borderline range, which was in the educable mentally retarded range of skill. The State conceded that it could not prove fitness to stand trial at that time. The court found defendant unfit for trial.

On November 7, 1989, the court conducted a fitness status hearing. Defense counsel stipulated that defendant would score a 52 on a fitness examination, which is the minimum score necessary to be found fit for trial. The court accepted the stipulation and found defendant fit for trial.

Defendant later filed a motion to suppress statements he made to the police during their investigation of the burglary. Dr. McNelly again testified at the suppression hearing. McNelly testified that defendant’s IQ was 75. This placed defendant in the range between mentally retarded and very low average. Defendant’s reading and spelling abilities were below the first percentile. Defendant was a functional illiterate with a reading level below the third grade.

McNelly testified that reading comprehension skills range from a scale of 0 to 100 and an individual’s oral reading skills are usually within one or two percentage points of his reading comprehension skills. The average person falls at 50 on the 0 to 100 scale. Defendant was between one and two on this scale.

McNelly further stated that defendant had regressed from January 1989 to August 9, 1989. His reading and spelling skills had not improved since January 1989. McNelly again stated that defendant suffered from schizophrenia. Based on this and other evidence, the court suppressed defendant’s statements.

On January 12, 1990, defendant appeared in court, and the following colloquy occurred:

“THE COURT: Now, as to this charge you have an absolute right to have this charge against you tried before a jury of twelve people; do you understand?
DEFENDANT: Yes, sir.
THE COURT: All twelve people on that jury would have to be chosen from Winnebago County, Illinois, and all twelve would have to believe, after hearing all the evidence and arguments of the lawyers and the instructions of the Court, that you had been proved guilty of the particular crime charged beyond a reasonable doubt before they could find you guilty; do you understand?
DEFENDANT: Yes, sir.
THE COURT: You may waive or give up that right to a jury trial, only you can give it up. If you don’t waive jury then you will have a jury trial. Your counsel informs me that you wish to waive or give up your right to jury trial; is that true?
DEFENDANT: Yes, sir.
THE COURT: That is do you want a bench trial by the Judge alone?
DEFENDANT: Yes, sir.
THE COURT: I would like to have you read out loud the sentence that appears above the signature line.
MR. WILT: Could I read it for him? He doesn’t read too well, as you might recall from some of the testimony we had earlier, with the Court’s permission.
THE COURT: Do you understand what that means?
DEFENDANT: Yes, sir.
THE COURT: Now, do you understand that if you sign that piece of paper you will be telling me that you do not want a jury trial, you want the Judge to try the case.
DEFENDANT: Yes, sir.
THE COURT: All right you can sign that. Now before I accept this, Mr. Woods, have you talked this over with your lawyer?
DEFENDANT: Yes, sir.
THE COURT: Have you talked this over with anybody else in your family that you might want to talk to?
DEFENDANT: I called my sister. She didn’t come down here today. I don’t know what’s up.”

On January 16, 1990, defendant again appeared in court, and the prosecutor and defense counsel announced a tentative plea agreement. At that time, the following conversation took place:

“THE COURT: Mr. Woods, I want you to read out loud the sentence that appears on that piece of paper above the signature line. Begin with the words, ‘And now comes?’
DEFENDANT: ‘And now comes the above named Defendant in his own — ’
MR. WILT: ‘Proper-,’
DEFENDANT: ‘ — proper person and waives trial by jury in the above entitled cause and — ,’
MR. WILT: ‘enters-,’
DEFENDANT: ‘enters a plea of guilty to residential burglary as — ,’
MR. WILT: ‘-charged,’
DEFENDANT: ‘ — as charged in the — ’
MR. WILT: ‘-Information?’
DEFENDANT: ‘ — Information.’
THE COURT: Now, Mr. Woods, if you sign that paper you will be doing two things. One, it says you will be giving up your right to a jury trial and actually you will be giving up your right to any trial; do you understand that?
DEFENDANT: Uh-huh.
THE COURT: And, second, you are pleading guilty to this charge of Residential Burglary under the terms of this agreement that provides that you will be sentenced to 7 years in the Department of Corrections.
DEFENDANT: Uh-huh.
THE COURT: Is that what you want to do?
DEFENDANT: Nope.
THE COURT: What do you want to do?
DEFENDANT: I am going to take a trial. I think I have a better chance at trial.
THE COURT: All right.”

In the absence of a plea agreement the cause proceeded to a bench trial. In addition to the testimony of Price and the officers, the victim’s father, Darrell Price, Sr., testified. He stated that he lived next door to his son. He was summoned to his son’s home between 2 and 3 a.m., on June 18, 1989. As he arrived at the driveway he saw a man’s head poke out of a window on the north side of the house. The elder Price yelled and the man took off. He was 20 to 30 feet from the window when the man ran off. Price was not able to identify the man he saw run from the window, but stated that as far as he could tell he was a black man, about 5 feet 8 inches to 5 feet 10 inches tall and slender, with short hair.

At trial, several officers testified regarding fingerprints lifted from the broken glass. A print taken from the glass matched the print of defendant’s left middle finger. There were 10 points of identification between the print on defendant’s fingerprint card and the print taken from the glass. A minimum of eight points is considered a positive match.

At the close of the State’s case, defendant moved for a “directed judgment [sic].” The court characterized the motion as a motion for a “directed verdict [sic]” and denied the motion. (Ill. Rev. Stat. 1989, ch. 38, par. 115—4(k).) The defense rested without presenting any evidence. The court found defendant guilty of residential burglary. The court denied defendant’s post-trial motion and subsequently sentenced him to nine years’ imprisonment.

Defendant raises two contentions on appeal. First, he argues that he was not proved guilty beyond a reasonable doubt of residential burglary because the only evidence linking him to the crime was his fingerprint on the broken glass and the State failed to prove that the print could not have been placed there at some time other than the time of the burglary. Defendant also contends that, given his low IQ, illiteracy and mental illness, the record does not establish that he made a knowing and understanding waiver of his right to a jury trial.

Regarding defendant’s first issue, the evidence was sufficient to prove him guilty beyond a reasonable doubt. The State does not contest that the case against defendant is entirely circumstantial. However, circumstantial evidence is sufficient to support a conviction if, “ ‘viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89; People v. Pintos (1989), 133 Ill. 2d 286, 291.

A conviction may be based solely upon fingerprint evidence. (People v. Rhodes (1981), 85 Ill. 2d 241, 249; People v. Taylor (1965), 32 Ill. 2d 165, 168.) “In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed.” Rhodes, 85 Ill. 2d at 249.

The facts of In re P.W., a case consolidated with Rhodes for appeal, are similar to those of the instant case. In that case, the minor’s fresh thumbprint was found on a glass fragment at the scene of the burglary. There was no other evidence connecting him with the break-in. The court affirmed the finding of delinquency based on residential burglary. The court concluded that “[i]t is not reasonable to hypothesize that the minor would casually walk past the window and impress a thumbprint on the right corner of the window.” (Rhodes, 85 Ill. 2d at 250.) Thus, the presence of the thumbprint on the window was not consistent with any reasonable hypothesis of innocence. Rhodes, 85 Ill. 2d at 249-50; see also People v. Reno (1975), 32 Ill. App. 3d 754, 758.

Similarly, in the instant case, defendant’s fingerprint was found on a piece of broken glass immediately outside the window through which entry was gained. Defendant speculates that, since he lived in the neighborhood, and in fact was seen near the victim’s home a few days before the burglary, the fingerprint could have been impressed at some other time. However, there was no evidence to support such a theory. Neither defendant nor anyone else testified that he had been near the north side of the victim’s house. Although he was seen in a neighbor’s yard adjacent to the victim’s home, the yard was on the south side of the house, while the break-in occurred through a window on the north side. There was absolutely no evidence that defendant was ever on the north side of defendant’s house at some time other than the crime.

The cases which defendant cites in support of his argument are distinguishable in that there was some evidence that each of the defendants had been in the victim’s home at a time other than during the commission of the offense. See People v. Poole (1981), 99 Ill. App. 3d 939; People v. Ware (1980), 82 Ill. App. 3d 297; People v. Donahue (1977), 50 Ill. App. 3d 392.

Defendant’s fingerprint was found on a piece of glass from the window through which entry was gained. As in Rhodes, it is simply not reasonable to hypothesize that defendant may have casually impressed his print on the window at some other time, particularly in light of the lack of evidence that he had ever been near the south side of the victim’s house. The trial court was not required to raise this speculation to the level of reasonable doubt. There was sufficient evidence to support defendant’s conviction beyond a reasonable doubt.

Turning to defendant’s second issue, it is clear that he validly waived his right to a jury trial. Both the Illinois (Ill. Const. 1970, art. I, §8) and Federal constitutions (U.S. Const., amends. VI, XIV) guarantee a criminal defendant’s right to trial by jury. The trial court has a duty to ensure that a defendant’s waiver of that right is made expressly and understandingly. (People v. Smith (1985), 106 Ill. 2d 327, 334; People v. Steenbergen (1964), 31 Ill. 2d 615, 617.) The legislature has effectuated this right by statute, providing that “[ejvery person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Ill. Rev. Stat. 1989, ch. 38, par. 103—6.) However, there is no set formula for determining whether the waiver was made knowingly, and the determination necessarily turns on the particular facts of each case. (Smith, 106 Ill. 2d at 334; People v. Steiger (1991), 208 Ill. App. 3d 979, 981.) There is no requirement that the court affirmatively advise defendant of his right to a jury trial and elicit a waiver, or advise him of the consequences of a waiver. People v. Frey (1984), 103 Ill. 2d 327, 333.

Defendant contends that, due to his mental condition, his illiteracy, his inability to communicate effectively and his use of psychotropic drugs, he did not make an understanding waiver of his right to a jury trial in open court on January 12, 1990. The record reveals that on January 12 the trial court carefully explained to defendant his right to a jury trial and the consequences of waiving that right. When asked if he understood this right and wished to waive a jury trial, defendant repeatedly responded, “Yes, sir.” Defendant also responded affirmatively when asked if he had discussed this with his attorney and said that he had also called his sister. Defendant’s attorney read the jury waiver form and explained it to him. Defendant signed the form in open court. At no time did he demonstrate any confusion or misunderstanding regarding the right to a jury trial or his decision to waive that right.

Defendant further contends, however, that even if he validly waived his right to a jury trial on January 12, he subsequently withdrew that waiver at the January 16 guilty plea hearing. Specifically, defendant points to the following colloquy as showing that he revoked his waiver:

“THE COURT: Now, Mr. Woods, if you sign that paper you will be doing two things. One, it says you will be giving up your right to a jury trial and actually you will be giving up your right to any trial; do you understand that?
DEFENDANT: Uh-huh.
THE COURT: And, second, you are pleading guilty to this charge of Residential Burglary under the terms of this agreement that provides that you will be sentenced to 7 years in the Department of Corrections.
DEFENDANT: Uh-huh.
THE COURT: Is that what you want to do?
DEFENDANT: Nope.
THE COURT: What do you want to do?
DEFENDANT: I am going to take a trial. I think I have a better chance at trial.
THE COURT: All right.”

There is no indication in this sequence that defendant revoked his waiver of a jury trial. The court explained to defendant that he would be pleading guilty. The court’s question, “Is that what you want to do?” clearly refers to pleading guilty. When defendant answered “Nope,” he meant that he did not wish to plead guilty. He said nothing about a jury trial. No mention was made of a jury trial during the entire sequence. Given defendant’s unequivocal waiver of a jury trial just four days earlier, it is not reasonable to infer that defendant’s one-word response, “Nope,” somehow referred to waiving his right to a jury trial.

Moreover, this passage undermines defendant’s claim that he was incapable of waiving his right to a jury trial due to his mental condition. His response that he thought he would have a better chance at trial shows an ability to appreciate the consequences of his actions and make a reasoned decision.

Generally, evidence that a defendant has been found fit to stand trial is sufficient to support a finding that he is competent to waive his right to a jury trial, especially where there is no conflict in the psychological testimony. (People v. Marshall (1983), 114 Ill. App. 3d 217, 231.) In Marshall, defendant was found guilty but mentally ill of murder in a bench trial. The defendant had previously been found fit to stand trial. The court held that where there was no conflict in the psychiatric testimony at the fitness hearing and no evidence that defendant’s condition had deteriorated since the hearing, the evidence of fitness for trial also supported a finding that defendant was competent to waive a jury trial. Also, the court gave defendant a long admonition regarding her right to a jury trial. Defendant’s responses showed that she understood this right and made a knowing decision. Marshall, 114 Ill. App. 3d at 231-32.

Similarly, in the instant case, defendant had recently been found fit to stand trial. Defense counsel stipulated that defendant would score at least a 52 on a fitness test. Dr. McNelly’s testimony at the original fitness hearing and the suppression hearing was uncontradicted. There was no evidence that defendant’s condition had deteriorated since those earlier proceedings. Finally, the court conducted a detailed admonition during which it explained the right to a jury trial and the consequences of waiving a jury. Throughout the admonition defendant responded appropriately to the court’s inquiries, demonstrating that he understood the right and had made a knowing decision to waive it. In short, the record affirmatively shows that defendant understood the right to a jury trial, made a knowing decision to waive that right, and did not subsequently revoke that decision.

For the foregoing reasons, defendant’s conviction and sentence for residential burglary are affirmed.

Affirmed.

DUNN and NICKELS, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re ESTATE OF MICHAEL H. DAVIS, Deceased (Richard W. Waller et al., Ex’rs of the Estate of Michael H. Davis, Deceased, Petitioners-Appellees, v. Carol B. Davis, Respondent-Appellant).
    Second District
    No. 2 — 91—0184
    Opinion filed March 10, 1992.

      Michael J. Kralovec and Daniel C. Meenan, Jr., both of Feiwell, Galper & Lasky, Ltd., and Jeffrey B. Steinback, of Genson, Steinback & Gillespie, both of Chicago, for appellant.
    Altheimer & Gray, Arthur M. Holtzman, of Pedersen & Houpt, P.C., Richard A. Lang, of Kirkland & Ellis, and James C. Murray, Alexander R. Rothrock, and Mark L. Johnson, all of Katten, Muchin & Zavis, all of Chicago, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Carol B. Davis, appeals from the order of the circuit court of Du Page County which granted petitioner’s motion for judgment on the pleadings and to strike affirmative defenses. We affirm.

The marriage of Michael and Carol Davis was dissolved on July 27, 1983. As part of the property settlement agreement pursuant to the dissolution, Carol waived her right to specific shares of stock in Michael’s company, Victory Beauty Supply Company, Inc., 77 shares of which were held at that time in Lake Shore National Bank IRA No. 5013. The only beneficiary ever designated under that account was Carol.

Michael Davis died on March 22, 1990. Both Carol and the independent co-executors of the estate claimed the account proceeds which then allegedly included some $3 million from the sale of Victory Beauty Supply Company stock. On May 16, 1990, the co-executors filed a petition seeking, among other things, an order declaring the estate to be the beneficiary of the IRA in light of the parties’ divorce, Carol’s waiver in the property settlement agreement of any rights in the stock held in the IRA, and the operation of section 1 of the Trusts and Dissolutions of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 148, par. 301). Lake Shore National Bank filed an answer requesting an order directing it as to the legal rights of the estate. The bank is merely a stakeholder and is not a party to this appeal. Carol filed an answer and affirmative defenses to the petition, seeking an order denying the relief sought in the petition and acknowledging her status as the proper beneficiary of the trust.

In October 1990, the co-executors filed a motion seeking judgment on the pleadings and the striking of Carol’s affirmative defenses, pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2—615(e), (a)). After full briefing and oral argument, the court granted judgment on the pleadings in the co-executors’ favor and struck Carol’s affirmative defenses. This appeal followed.

A motion for judgment on the pleadings is based on admissions in an opposing party’s pleadings, whereas a motion to strike challenges whether the pleader has a valid cause of action or defense even if all the facts alleged by the pleader are taken as true. (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 188-89.) Both motions are determined solely on the basis of the pleadings in order to determine the existence or absence of a genuine issue of material fact and, in the absence of such an issue, whether the movant is entitled to judgment as a matter of law. (State Farm Fire & Casualty Co. v. Kleckner (1990), 194 Ill. App. 3d 371, 375.) This contrasts, for example, with summary judgment motion practice where judgment on the motion may also include consideration of affidavits, deposition transcripts and other evidentiary documents in order to establish the absence of a factual issue. State Farm Fire & Casualty Co., 194 Ill. App. 3d at 375; Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.

Exhibits attached to pleadings such as the motions at bar are considered part of the pleadings for all purposes where the pleading is founded on such exhibits. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 606.) Allegations in the pleading which conflict with facts disclosed in the exhibits are not admitted as true but, rather, the exhibit controls. (McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460.) Also, exhibits attached to pleadings simply as an example of the evidence supporting the pleader’s allegations are not taken as true and are not controlling. Jones v. Lazerson (1990), 203 Ill. App. 3d 829, 836; McCormick, 118 Ill. App. 3d at 460-61.

On a motion for judgment on the pleadings, if the pleadings put in issue one or more material facts, evidence must be taken to resolve such issues, and judgment may not be entered on the pleadings. (Village of Worth v. Hahn (1990), 206 Ill. App. 3d 987, 990.) On review, the court must determine whether any genuine issue of material fact exists and, if not, whether the prevailing party was indeed entitled to judgment as a matter of law. State Farm Fire & Casualty Co., 194 Ill. App. 3d at 375.

A motion to strike an affirmative defense admits all well-pleaded facts constituting the defense, along with all reasonable inferences which may be drawn therefrom. (Raprager v. Allstate Insurance Co. (1989), 183 HI. App. 3d 847, 854.) Such a motion raises only a question of law as to the sufficiency of the pleading. (Raprager, 183 111. App. 3d at 854.) Where the well-pleaded facts and inferences drawn therefrom raise the possibility that the party raising the defense will prevail, the motion to strike should not be granted. Long v. Kemper Life Insurance Co. (1990), 196 Ill. App. 3d 216, 218; Raprager, 183 Ill. App. 3d at 854.

In her answer to the co-executors’ petition to recover the proceeds of the IRA account, Carol admitted that the decedent established IRA No. 5013 on October 26, 1982, that she was designated at that time as its beneficiary, and that the decedent never filed any other beneficiary designations with the Lake Shore National Bank. She further answered that the terms of the judgment of dissolution of her marriage to the decedent entered on July 27, 1983, and the property settlement agreement incorporated therein speak for themselves, and, to the extent those terms were inconsistent with the co-executors’ allegations that she specifically waived any rights to the property of the trust or any beneficial interest therein, she denied them. The property settlement agreement provided in pertinent part that the decedent receive as his “sole and exclusive property” the 77 shares of Victory Beauty Supply Company, Inc., stock in the Lake Shore National Bank IRA No. 5013 and that Carol waives any and all rights and claims “past, present or future” in and to said property. Carol also answered that the co-executors’ allegation that section 1 of the Act revoked the designation of her as the beneficiary of the trust was an “erroneous legal conclusion” which she denied and that the terms of the trust agreement speak for themselves.

As her first affirmative defense, Carol claimed that even if section 1 of the Act applied to revoke the decedent’s designation of her as beneficiary of the IRA account after the parties’ divorce, such designation was “approbated and ratified anew” by the decedent subsequent to the divorce. As her second affirmative defense, Carol claimed that Lake Shore National Bank was merely a custodian for property or an appointed paying and receiving agent under the instrument creating the account or that the account is equivalent to a Tot-ten trust. Under any of those circumstances, the account would be specifically excluded from the revocation provisions of section 1. Ill. Rev. Stat. 1989, ch. 148, pars. 301(c)(f), (c)(g).

Based on Carol’s admission that decedent never filed any other beneficiary designation subsequent to the parties’ divorce, the co-executors filed their motion for judgment on the pleadings and to strike affirmative defenses. Carol’s response elaborated on her answer, and she appended to it numerous exhibits. Her response challenged the January 1, 1989, trust agreement relied upon by the co-executors as the controlling instrument in light of the affidavit of Gerald P. Giese, a trust officer of the bank, that decedent never executed a written adoption agreement as to that 1989 amendment and that the only adoption agreement ever executed was the one dated October 26, 1982. Other exhibits appended to Carol’s response included the judgment for dissolution, affidavits of herself and the parties’ respective attorneys in the divorce proceedings; various account records of IRA No. 5013 (which, for the most part, this court finds illegible); copies of the decedent’s last wills and testaments and codicils executed both before and after the parties’ divorce; various trust instruments executed subsequent to February 1, 1984; and a letter dated July 25, 1986, from the decedent to the trustee of the IRA purporting to amend the October 26, 1982, adoption agreement by directing that the trustee not engage in any distribution or transfer of amounts held with respect to the IRA other than to decedent’s checking account with the Lake Shore National Bank at his direction. The stated purpose of these other exhibits was to show that the decedent’s intent was “to continue to provide for Carol by continuing to designate her as the beneficiary of the IRA.”

After considering written memoranda of law and argument, the court granted the co-executors’ motion for judgment on the pleadings and struck both of Carol’s affirmative defenses. It also granted judgment in favor of the co-executors on their petition for recovery of the individual retirement account, declaring the estate of Michael Davis to be the beneficiary of the IRA trust account and that Carol had no right, title or interest in the trust.

Carol first argues that, even if section 1 of the Act was applicable to the IRA, it was error for the court to have entered judgment on the pleadings where material questions of fact were raised thereby and where the court was bound to accept as true that the decedent intended her at all times to be the beneficiary of the account as alleged in her pleadings and the exhibits appended thereto.

The first material question of fact Carol claims was raised is which of the two trust agreements controls: the 1989 amendment proffered by the co-executors or the original 1982 trust agreement? We agree with the co-executors, however, that this does not present a material question of fact. The trust agreement adopted by the decedent in 1982 provided in article IX, section 9.01, that he delegated to the trustee the power to amend the trust agreement in any respect (other than the decedent’s own reserved power to change an election or designation in the adoption agreement) and that the “Participant” (decedent herein) would be deemed to have consented to such amendment unless he notified the trustee within 30 days that he wished to terminate his participation in the agreement. No facts were pleaded which indicated that the decedent did not consent to the 1989 amendment. Clearly, the decedent’s July 25, 1986, letter purporting to amend the 1982 adoption agreement does nothing to diminish the validity of the subsequent 1989 amendment since decedent’s 1986 letter predated the amendment by 3½ years. Moreover, both the 1982 and 1989 versions contain virtually identical language concerning the requirements for designation of beneficiary, to wit:

“Each Participant shall designate in writing the Beneficiary to whom his Benefits will be distributed in the event of his death, and the Trustee may rely upon the last such written designation that the Trustee receives prior to the Participant’s death. Any Benefits not disposed pursuant to a valid Beneficiary designation will be paid to Participant’s surviving spouse, or if there is no spouse living at the time of the Participant’s death, to the Participant’s estate.”

In light of that provision in both versions, and Carol’s admission that the decedent never filed any beneficiary designations with Lake Shore National Bank other than the October 26, 1982, one, Carol’s further argument that decedent’s subjective intent to “approbate and ratify anew” his designation of her as beneficiary subsequent to their divorce also presented a material question of fact is without merit. The terms of the trust agreement are clear that a valid written designation of beneficiary is required and no new designation was filed subsequent to the parties’ divorce in 1983. Moreover, contrary to Carol’s assertions, the court need not have accepted as true the facts set forth in the various exhibits appended to her pleadings for purposes of deciding the motions. The exhibits upon which she relied to show the decedent’s subjective intent were attached as examples of the evidence supporting her pleading and, as such, neither control nor need be taken as true by the court in determining the motions. Jones v. Lazerson (1990), 203 Ill. App. 3d 829, 836; McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460.

We conclude there were no genuine issues of material fact which precluded judgment on the pleadings. We must next consider whether the co-executors were entitled to judgment as a matter of law on the basis of the pleadings or whether the well-pleaded facts and inferences drawn from Carol’s affirmative defenses raised the possibility that she would prevail.

As noted above, Carol’s first affirmative defense was that the beneficiary designation under IRA No. 5013 was “approbated and ratified anew” by the decedent subsequent to the parties’ divorce in 1983. Viewing the well-pleaded facts and inferences drawn therefrom in Carol’s favor, we see no possibility of her prevailing on this defense. Decedent designated Carol as beneficiary of the IRA upon its creation in October 1982 pursuant to a trust agreement. In July 1983, the parties were divorced, and by the terms of the parties’ property settlement agreement, Carol specifically waived all past, present or future interest in 77 shares of Victory Beauty Supply Company stock “[i]n IRA account Lake Shore.” It is not clear from the pleadings whether that stock constituted the entire res of IRA No. 5013 at that time. Nonetheless, neither the trust agreement nor the judgment of dissolution expressly provided that section 1 of the Act would not apply and that act was in effect at all relevant times herein. In pertinent part, it provided:

“Unless the governing instrument or the judgment of judicial termination of marriage expressly provides otherwise, judicial termination of the marriage of the settlor of a trust revokes every provision which is revocable by the settlor pertaining to the settlor’s former spouse in a trust instrument or amendment thereto executed by the settlor before the entry of the judgment of judicial termination of the settlor’s marriage, and any such trust shall be administered and construed as if the settlor’s former spouse had died upon entry of the judgment of judicial termination of the settlor’s marriage.” Ill. Rev. Stat. 1989, ch. 148, par. 301(a).

Section 1 recently was discussed in Leahy v. Schuett (1991), 211 Ill. App. 3d 394, but was found inapplicable because the land trust there was specifically exempted from the operation of the Act (see Ill. Rev. Stat. 1989, ch. 148, par. 301(c)(a)) and, further, the land trust was created prior to the Act’s effective date. No other reported Illinois cases have applied section 1.

By the plain language of the statute, unless the trust agreement as the “governing instrument” or the parties’ property settlement agreement expressly provided that section 1 would not apply or unless the decedent redesignated Carol after their divorce in a written beneficiary designation subsequent to the divorce as required by the terms of the trust agreement, the decedent’s predissolution designation of Carol as the beneficiary of IRA No. 5013 was revoked by operation of section 1 at the time his marriage to Carol was judicially terminated.

Both the 1989 amendment and the original 1982 trust agreement specifically recite that the agreement “shall be construed and interpreted in accordance with the laws of the State of Illinois,” and the 1982 trust agreement was adopted almost 11 months after the effective date of section 1. The designation of Carol by the decedent as beneficiary of IRA No. 5013 was a “provision revocable by the [settlor] pertaining to the [settlor’s] former spouse.” “Provisions pertaining to the settlor’s former spouse” as defined by the statute include, but are not limited to, “every present or future gift or interest or power of appointment given to the settlor’s former spouse.” Ill. Rev. Stat. 1989, ch. 148, par. 301(d).

Despite the revocation which occurred by operation of the Act, decedent could have redesignated Carol as beneficiary of IRA No. 5013 after their divorce. Decedent must be charged with the knowledge that the IRA trust agreement was to be construed in accord with Illinois law, and his failure after the Act’s automatic revocation to redesignate Carol in writing as beneficiary of the IRA as required under the trust agreement must be viewed as an intent not to renew that beneficiary designation. (Cf. Williams v. Gatling (1989), 186 Ill. App. 3d 21 (where decedent had ample opportunity after his divorce to designate a beneficiary other than his ex-wife under his employee stock ownership plan but did not do so, court upheld designation of ex-wife as beneficiary under that plan despite the parties’ mutual waiver of assets in divorce decree).) Thus, there was no “valid” beneficiary designation in effect under the trust agreement at the time of the decedent’s death, and Carol’s “subjective intent” affirmative defense could not possibly prevail in light of the trust agreement’s clear requirement that the beneficiary designation be in writing.

Carol’s second affirmative defense was that the IRA trust agreement was either (a) an “instrument under which a nominee, custodian for property or paying or receiving agent is appointed” or (b) a Totten trust and, thus, was exempt from the provisions of the Act (Ill. Rev. Stat. 1989, ch. 148, pars. (c)(f), (c)(g)).

It clearly was not the latter. A Totten trust or savings bank trust is created when a deposit is made by a person of his or her own money in his or her own name as trustee for another. (In re Estate of Petralia (1964), 48 Ill. App. 2d 122, 129 (referring to the court’s decision in In re Totten (1904), 179 N.Y. 112, 125-26, 71 N.E. 748, 752), aff d (1965), 32 Ill. 2d 134, 138; see also In re Estate of Capocy (1981), 102 Ill. App. 3d 609, 611-12.) IRA No. 5013 is not a savings account, nor is the decedent the trustee thereof.

It is not as clear, however, whether the instrument governing IRA No. 5013 falls within exception (f) to subsection (c) of section 1 as being one “under which a nominee, custodian for property or paying or receiving agent is appointed.” (Ill. Rev. Stat. 1989, ch. 148, par. 301(c)(f).) Carol’s argument is that, rather than creating a true trust relationship, the instrument here created only an agency or custodial relationship. In support, she relies on these factors: Lake Shore National Bank had no discretion whatever with regard to the assets of IRA No. 5013 but could act only upon the specific written direction of the decedent; an agency relationship rather than a trust relationship may be found to exist in special circumstances even though title has passed; decedent had the power to revoke the agreement; and, finally, decedent agreed to indemnify Lake Shore National Bank against any liabilities in a hold-harmless clause in the agreement.

The co-executors respond that the IRA trust agreement shows it is a trust and not an agency of any kind because Lake Shore National Bank holds legal title to the trust property; arrangements in which the settlor retains far more control than even that reserved to the decedent here are routinely recognized as trusts; the decedent’s death did not cause the trust to be terminated; and any liability of the decedent for Lake Shore National Bank arises only indirectly by virtue of their contractual arrangement whereby, in a common business practice, a trustee may shift the burden of certain liabilities by contractual arrangement to another party.

An individual retirement account, or IRA, is a trust (or custodial account) created or organized for the exclusive benefit of an individual or his or her beneficiaries. (26 U.S.C. §408(a) (1988); First National Bank v. Estate of Philp (1982), 106 Ill. App. 3d 360, 361; 60A Am. Jur. 2d Pensions & Retirement Funds §42, at 90 (1988); Black’s Law Dictionary 774 (6th ed. 1990).) The IRA in Philp, a custodial account, was found to be a “special deposit,” that is, a bailment to be returned intact on demand. Because it was not a “general” deposit, there was no debtor/creditor relationship between the bank and the depositor and the court found the bank had no right to set off the deceased depositor’s funds against his debt to it on three promissory notes. Philp, 106 Ill. App. 3d at 362.

A “custody” or “custodial” account is a type of agency account in which the custodian has the obligation to preserve and safekeep the property entrusted to him for his principal. (Black’s Law Dictionary 384 (6th ed. 1990).) Custodial accounts are treated as trusts for purposes of section 408 of the Internal Revenue Code of 1954 if the assets of the account are held and administered consistent with that section and if the custodial account would, except for the fact that it is not a trust, constitute an individual retirement account as described in subsection (a) of section 408. 26 U.S.C. §408(a) (1988); McCarty v. State Bank (1990), 14 Kan. App. 2d 552, 555-56, 795 P.2d 940, 944.

In contrast to the custodial account IRA in Philp, the IRA at bar was established as a trust under a trust agreement. In order to find there is a valid express trust, these conditions must be present: an intent to create a trust which may be shown by a declaration of trust by the settlor or circumstances which show the settlor intended to create a trust; a definite trust res; ascertainable beneficiaries; a trustee; specification of the purpose of the trust and how it is to be performed; and delivery of the trust property to the trustee. GaryWheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 92; see also Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 760.

A custodial account IRA is not an express trust because there is no intent to establish a trust. (Estate of Davis (1985), 171 Cal. App. 3d 854, 857, 217 Cal. Rptr. 734, 736.) Here, however, there was an intent to establish a trust as evidenced by decedent’s execution of the IRA retirement plan adoption agreement which incorporated the trust agreement. The trust res was the IRA; “ascertainable beneficiaries” were Carol Davis, or if that designation was not valid, decedent’s surviving spouse or, if none, his estate; Lake Shore National Bank was appointed trustee and decedent’s contributions to the IRA were delivered to the bank.

Carol argues the element of “the manner in which the trust to be performed” is missing, however, where the account was completely self-directed and Lake Shore National Bank had no discretion or control whatsoever with regard to the trust res but could act only when, how and if directed to do so in writing by the decedent. Pointing to control as the most essential element to a demonstration of the existence of an agency relationship, Carol concludes the decedent/Lake Shore National Bank relationship is one of principal/agent and not beneficiary/trustee.

The co-executors correctly argue, however, the control exercised by the decedent here was as settlor of the trust, not as a beneficiary. (See Just Pants v. Bank of Ravenswood (1985), 136 Ill. App. 3d 543, 547 (where beneficiaries retain control over the trustee and the management of the business, the trustee is regarded as the agent of the beneficiaries); see also Kessler, Merci, & Loehner, Inc. v. Pioneer Bank & Trust Co. (1981), 101 Ill. App. 3d 502, 505-06.) Moreover, it has been held that where the settlor has reserved a power in himself to the effect that the trustee should not exercise any of its powers granted in the trust agreement without the prior written consent of the settlor, such power is not of such a substantial nature as to amount to a retention of virtual ownership in the settlor and the attendant relegation of the trustee to the role of mere agent of the settlor. (Merchants National Bank v. Weinold (1956), 12 Ill. App. 2d 209, 220-24.) The rationale underlying that conclusion is that such a reserved power only permits the settlor to direct the trustee according to the terms of the trust instrument and not according to the settlor’s unlimited whims or desires. Merchants National Bank, 12 Ill. App. 2d at 223.

Carol essentially concedes that legal title to the trust res passed to the trustee here but asserts nonetheless that an agency relationship may be found to exist even though title has passed. Carol does not explain the relevance to the instant cause of the cases she cites in support of that proposition, and we do not find them apposite. In re Estate of Reiter (1939), 298 Ill. App. 313 (agent may take title under special contract but in absence of such contract does not); O’Connor v. Burns, Potter & Co. (1949), 151 Neb. 9, 29, 36 N.W.2d 507, 519 (securities taken in name of one of defendant corporation’s managing officers were taken solely for the purpose of placing them in street form by his endorsement and not to vest legal title in him).

Carol further argues that another distinction between a trust and an agency is that a trust ordinarily is terminated only by the fulfillment of its purpose, whereas an agency can be revoked at any time, and the fact the decedent reserved the power to terminate or revoke the trust is not indicative of the existence of a trust. (Merchants National Bank v. Frazier (1946), 329 Ill. App. 191, 201.) Without a reserved power to terminate, however, the settlor of a trust has no power to revoke the trust which normally will terminate as provided in the trust instrument or when the settlor’s purpose in establishing the trust has been accomplished. (G. Bogert, Law of Trusts §148, at 531; §149, at 536 (5th ed. 1973).) Decedent’s reserved power to terminate the trust here is particularly consistent with the existence of an inter vivos trust which is effective during the lifetime of the settlor as contrasted with a testamentary trust which takes effect at the death of the settlor or testator.

Finally, Carol points to the clause in the trust agreement wherein the decedent agreed to “indemnify, hold harmless and defend the Trustee from and against any liabilities incurred by reason of any action taken by the Trustee in good faith pursuant to the provisions of this agreement.” She presents no argument or authority, however, with regard to this point thus waiving it. (134 Ill. 2d R. 341(e)(7).) We infer that she considers this a point which favors a finding of agency rather than trust, but we need not consider it under the circumstances.

In sum, we find as a matter of law that IRA No. 5013 is an inter vivos trust which does not fall within exception (c)(f) or (c)(g) of section 1 of the Act. Accordingly, Carol’s second affirmative defense failed to raise the possibility that she would prevail, and the court did not err in striking it.

For the reason above, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and NICKELS, JJ., concur.