author: JUSTICE CERDA

text:
    BUSINESS AND PROFESSIONAL PEOPLE FOR THE PUBLIC INTEREST, Plaintiff-Appellant, v. TERRENCE BARNICH, Defendant-Appellee.
    First District (3rd Division)
    No. 1—92—2787
    Opinion filed March 31,1993.

      Howard A. Learner, of Chicago (Patricia M. Logue, of counsel), for appellant.
    Stamos & Trueco, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

One of the plaintiffs, Business and Professional People for the Public Interest (BPI), appeals from an order denying plaintiffs’ motion for preliminary injunction and dismissing with prejudice plaintiffs’ first amended verified petition and complaint for writ of mandamus, writ of prohibition, injunction, and further equitable relief. BPI argues on appeal that: (1) the complaint stated a cause of action; (2) there was an appearance of impropriety caused by the numerous telephone calls made by defendant, Terrence Bamich, who was a commissioner of the Illinois Commerce Commission (ICC), to Commonwealth Edison (Edison) lawyers, lobbyists and officials; and (3) plaintiffs were entitled to preliminary injunctive relief disqualifying defendant from Edison rate proceedings based on defendant’s failure to recuse himself.

The following plaintiffs filed the complaint, along with BPI: Citizens Utility Board, the Labor Coalition on Public Utilities, National Peoples Action Community Action for Fair Utility Practice, South Austin Coalition Community Council, Northwest Austin Council, Action Coalition of Englewood, Chicago South Community Development Organization, and Logan Square Neighborhood Organization. The complaint requested that defendant recuse himself from pending rate proceedings involving a proposed Edison rate increase and that he be enjoined from participating further in those rate proceedings.

The complaint alleged the following. Plaintiffs were parties in the Edison rate proceedings. BPI was a not-for-profit organization that represented Northern Illinois electricity consumers in Edison rate proceedings. Plaintiff Citizens Utility Board was a statutorily created organization. The other plaintiffs were not-for-profit organizations. The ICC was a seven-member administrative agency that set rates for utilities, including Edison. Defendant was an ICC commissioner since 1989.

The pending Edison remand case was the ICG’s third attempt since 1987 to set lawful electricity rates for Edison. Ratemaking proceedings were contested cases requiring the ICC to resolve questions of fact and law. Defendant acted in a judicial or quasi-judicial capacity in these rate proceedings. From December 1989 through the first nine months of 1991, during the pendency of early stages of the Edison remand case, more than 375 telephone calls were placed from defendant’s personal office telephone to the telephones of paid Edison representatives. The Edison representatives telephoned included: (1) an attorney for the law firm that performed legal and lobbying services for Edison; (2) a registered lobbyist for Edison who was also an attorney at the same law firm; (3) a consulting firm managed by a former ICC chairman; (4) an Edison employee who was Edison’s director of regulatory affairs during 1990 and 1991; (5) Edison’s chairman of the board; and (6) Edison’s vice-president.

Petitions for rehearing had been filed by the ICC and Edison seeking to free Edison from a pledge to refund the illegal increase after a December 1989 Illinois Supreme Court opinion. In May 1990, the Illinois Supreme Court issued a modified opinion directing that the refund be paid and remanded the case to the ICC. In April 1990, Edison filed a new rate increase request. During the period from December 1989 through May 1990, 116 telephone calls were made from defendant’s personal office telephone to various Edison representatives.

In June 1990, the ICC resumed jurisdiction over the remanded case. Final orders were issued on March 8, 1991. The ICC voted to grant Edison a large rate increase. From June 1990 through March 8, 1991, at least 148 telephone calls were made from defendant’s personal office telephone to various Edison representatives.

The complaint further alleged the following. Plaintiffs pursued a stay and appeal of the March 8, 1991, order. Oral argument was heard by the Illinois Supreme Court on April 25, 1991. During this period, at least 28 telephone calls were made from defendant’s personal office telephone to various Edison representatives.

On June 25, 1991, the Illinois Supreme Court heard argument on another Edison case, and on July 15, 1991, the appellate court ruled on another contested Edison rate order. From April 26, 1991, through September 12, 1991, at least 97 telephone calls were made from defendant’s personal office telephone to various Edison representatives.

The March 8, 1991, orders were reversed by the Illinois Supreme Court on December 16, 1991, and on February 10, 1992, the case was remanded to the ICC. In press stories following the revelation of these telephone records, defendant was quoted as having made these telephone calls and as being best friends with three of the Edison representatives telephoned. Defendant failed in his duty to maintain a favorable public impression of impartiality.

On March 3, 1992, plaintiffs filed a motion to have defendant recuse himself and refrain from participating in the rate proceedings. Defendant never responded to the motion and continued to participate in ICC meetings. Therefore, he constructively denied the motion. On March 27, 1992, plaintiffs filed a motion to have the ICC recuse defendant from participating in the proceedings. The ICC issued an order denying the motion on the ground of lack of jurisdiction to recuse a fellow commissioner.

The ICC stated its intention to issue a final order in the remand case on or before January 11, 1993. Recusal was required because of the appearance of impropriety and bias if not actual impropriety and bias arising from the telephone calls. Recusal was further required because of defendant’s admitted close personal relationship with Edison representatives to whom telephone calls were placed. Recusal was further required because of defendant’s failure to put on the record the substance of the conversations, in violation of section 10 — 103 of the Public Utilities Act (Ill. Rev. Stat. 1991, ch. lll⅔, par. 10—103). Plaintiffs were prejudiced by defendant’s participation in the proceedings. Plaintiffs sought a writ of mandamus compelling defendant to recuse himself from the Edison remand case.

Count II sought a writ of prohibition prohibiting defendant from continuing to participate in the Edison remand case. Count III sought injunctive relief against defendant’s continued participation.

Plaintiffs filed an emergency motion for a temporary restraining order to enjoin defendant from participating in a scheduled June 24, 1992, ruling by the ICC and in any other deliberations in connection with two ICC dockets. The motion was denied on June 23,1992.

Plaintiffs filed a first amended verified petition and complaint. Among the new allegations was that defendant’s recusal was required by the ICC’s regulations that set forth standards of behavior for commissioners.

Pursuant to defendant’s motion to dismiss, the trial court dismissed the complaint with prejudice on the basis that plaintiffs failed to state a cause of action.

BPI first argues on appeal that the complaint stated a cause of action because defendant had the duty to recuse himself based on his conduct that caused at least an appearance of impropriety. Specifically, BPI argues that: (1) judicial conduct principles on avoiding impropriety governed defendant’s conduct as a commissioner; (2) a prime objective of the Public Utilities Act (Ill. Rev. Stat. 1991, ch. lll⅔, par. 1 — 101 et seq.) was to instill consumer confidence in the ratemaking process; (3) defendant placed numerous telephone calls to attorneys, officers, and lobbyists of a litigant during the pendency of a case; (4) defendant failed to disclose these ex parte communications in violation of the Public Utilities Act (Ill. Rev. Stat. 1991, ch. lll⅔, par. 10—103) and the Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1015); (5) defendant’s conduct violated the ICC’s regulations on standards of behavior (83 Ill. Adm. Code §§100.10 through 100.40 (1985)); and (6) actual bias did not have to be shown before disqualification was ordered.

Defendant argues the following in response. His position was not analogous to a judge because the ICC becomes a party opponent of one party and a coappellee of another party when its decisions are appealed so that the ICC was Edison’s colitigant against plaintiffs on appeal. BPI failed to cite any civil authority that authorized recusal for the alleged appearance of partiality, for alleged ex parte communications, or for actual bias, prior to appeal from the adjudicative officer’s decision. Cases on which BPI relied were distinguishable on the basis that they involved situations of personal interest of agency members in the outcome of proceedings. Prejudice must be shown before reversing an agency’s decision because of improper ex parte contacts. It was possible that all defendant’s telephone calls were authorized or even required by the Public Utilities Act (Ill. Rev. Stat. 1991, ch. lll⅔, par. 4 — 101 (ICC is to have general supervision of public utilities)).

In addition to case law, BPI relies upon the following authority. Supreme Court Rule 62 directs that a judge should avoid both impropriety and the appearance of impropriety. (134 Ill. 2d R. 62.) Supreme Court Rule 63 obligates a judge to disqualify himself in a proceeding in which his impartiality might reasonably be questioned. (134 Ill. 2d R. 63.) Supreme Court Rule 63 prohibits ex parte communications concerning a pending or impending proceeding. 134 Ill. 2d R. 63.

Section 15 of the Administrative Procedure Act prohibited agency members, employees and hearing examiners, after notice of hearing in a contested case, from communicating with any person or party in connection with any issue of fact or with any party or his representative in connection with any other issue, except upon notice and opportunity for all parties to participate. (Ill. Rev. Stat. 1989, ch. 127, par. 1015.) Section 10—103 of the Public Utilities Act states that section 15 of the Administrative Procedure Act (Ill. Rev. Stat. 1989, ch. 127, par. 1015) applies to ICC proceedings, with an exception for certain ICC employees and functions. (Ill. Rev. Stat. 1991, ch. lll⅔, par. 10—103.) The section further provides that a commissioner, who is involved in the decisional process of a proceeding and who makes a prohibited communication, shall place on the public record any such written communication and memoranda stating the substance of any such oral communication. (Ill. Rev. Stat. 1991, ch. lll⅔, par. 10—103.) In the event of a violation, the ICC or a presiding commissioner was to ensure that the violation did not prejudice any party or adversely affect the fairness of the proceedings. Ill. Rev. Stat. 1991, ch. lll⅔, par. 10—103.

ICC regulations require ICC employees to avoid situations that might result in actual or apparent misconduct or conflict of interest and to avoid actions that might result in or create the appearance of giving preferential treatment to any interested party, of losing complete impartiality, of discussing impending decisions outside office channels, and of affecting adversely the confidence of the public in the ICG’s integrity. 83 Ill. Adm. Code §100.20 (1985).

In interpreting the supreme court rules on judicial conduct, one court has held that the appearance of bias or prejudice can be as damaging to the public confidence as actual bias or prejudice. (People v. Bradshaw (1988), 171 Ill. App. 3d 971, 976, 525 N.E.2d 1098.) Inherent in the rules is the concept that a judge who has a personal interest in a case cannot act fairly in that case. The principle of jurisprudence that one with a personal interest in the subject matter of decision in a case may not act as judge in that case is applicable not just to judges but to administrative agents, commissioners, referees, masters in chancery, or other arbiters of questions of law or fact not holding judicial office. (In re Heirich (1956), 10 Ill. 2d 357, 384, 140 N.E.2d 825.) A duty to recuse oneself has been applied to an arbiter of facts or law in an adversary proceeding who had a financial interest in the subject matter. Heirich, 10 Ill. 2d at 385.

On the basis that defendant was a commissioner whose duties were similar to those of a judge, we hold that the judicial conduct principles applied to him, resulting in a duty to recuse himself when his impartiality was reasonably questioned. We also hold that plaintiffs’ complaint stated a cause of action because it sufficiently alleged the appearance of impropriety by defendant, who, as a commissioner, was required to avoid such an appearance and was statutorily prohibited from making ex parte communications.

The next issue is whether plaintiffs could therefore seek defendant’s recusal via a writ of mandamus, a writ of prohibition, or an injunction. BPI argues that a writ of mandamus is the appropriate remedy to compel performance of an official duty and that defendant had a clear nondiscretionary duty to recuse himself. BPI also argues that a writ of mandamus would prevent damage to public confidence in the ratemaking proceedings. Defendant argues that plaintiffs were not entitled to a writ of mandamus because his constructive denial of the motion to recuse was a discretionary act within his legitimate authority.

We hold that defendant’s duty to recuse was not discretionary and that, therefore, the trial court erred in not granting a writ of mandamus. See United States v. Balistrieri (7th Cir. 1985), 779 F.2d 1191, 1205 (writ of mandamus was the remedy against a judge who refused to recuse himself when required); Crump v. Illinois Prisoner Review Board (1989), 181 Ill. App. 3d 58, 60, 536 N.E.2d 875 (mandamus is a remedy used to direct a public official to perform a duty which plaintiff has a clear right to have performed and which does not involve the exercise of judgment or discretion).

The judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

RIZZI and GREIMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAHILL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GALVAN, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2094
    Opinion filed March 31,1993.
    Rehearing denied May 13,1993.

      Frederick F. Cohn, of Chicago, for appellant.
    Jack O’Malley, State's Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Jeanne Lobelson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAHILL

delivered the opinion of the court:

Following a jury trial the defendant, John Galvan, age 18 at the time, was convicted of aggravated arson and the murder of two persons who died in the fire. He was sentenced to natural life imprisonment without parole. He contends on appeal: (1) the court erred in denying a motion to suppress his statement; (2) the court improperly excluded evidence during the hearing on the motion to suppress which showed lack of probable cause; (3) the court improperly limited the cross-examination of the detective who questioned the defendant; (4) the prosecutor improperly argued that witnesses feared the defendant; (5) the prosecutor presented improper and prejudicial evidence; (6) the court erred in denying the defendant the opportunity to offer evidence of the motives of other persons to commit the arson; (7) the aggravated arson statute is unconstitutional; and (8) the statute mandating a life sentence is unconstitutional. We affirm.

On September 21, 1986, at approximately 4 a.m., a fire swept through a house on 24th Place in Chicago. Two young men, trapped in an attic bedroom, died. Investigators suspected arson.

Nine months later, in June 1987, the police spoke to Rene Rodriguez, who told them that he and two of his friends, Jose Ramirez and Francisco Partida, were watching the fire on September 21 when he saw the defendant, the defendant’s brother, and another person named “Michael” also watching the fire.

The police then spoke to Jose Ramirez, who told them that seconds before the fire started he saw the defendant with a person named “Michael” and two other men walking together about a half block away from the house on 24th Place. Two of them turned around and looked at Ramirez. He recognized the defendant and Michael, who put the hood of his sweatshirt over his head when Ramirez looked at him. Within seconds of seeing the four men walk away, Ramirez heard an explosion and screams and saw the house on fire. The police showed Ramirez photographs, and he identified a picture of Michael Almendarez as the “Michael” he saw walking away from the house on the morning of the fire.

Michael Almendarez was brought to the station to be interviewed. The police advised him of his constitutional rights and told him that Ramirez said he saw him in the alley shortly before the fire started. Within three to five minutes after questioning began, Almendarez stated that the defendant and Francisco Nanez told him in October 1986 that they started the fire. He said that Nanez threw a beer bottle full of gasoline at the house and when it did not ignite, the defendant lit it with a cigarette. Almendarez said that he was not at the scene on the morning of the fire.

The police then arrested the defendant without a warrant, took him to the station, and advised him of his constitutional rights. Within an hour, the defendant admitted that he, Francisco Nanez, and Arthur Almendarez, Michael’s brother, started the fire because they believed that rival gang members lived in the house. He said the gang members had shot at him weeks earlier and he wanted to scare them. He told the police that Almendarez and Nanez bought the gasoline, put it in an empty beer bottle, and put a cloth in the top of the bottle. Nanez lit the cloth and threw the bottle at the house, but it did not ignite. The defendant then threw a cigarette at the side of the house and started the fire.

Before trial the defendant filed motions to quash his arrest and suppress evidence. At a hearing on the issue of probable cause, the court ruled that the information Michael Almendarez gave the police was reliable and corroborated and that there was probable cause to arrest the defendant.

At trial two alibi witnesses testified that the defendant was asleep at his grandmother’s house on the morning of the fire. The defendant also testified that he was at his grandmother’s house and that he signed his confession under duress. The jury convicted him of all counts.

The defendant first contends on appeal that the court erred in denying his motions to quash arrest and to suppress evidence. He argues that the arrest, made without a warrant, was based on the statement of Michael Almendarez and that his statement was not sufficient to constitute probable cause because Almendarez was a suspect and not credible. We disagree.

Probable cause to arrest exists when the facts and circumstances known by the police justify a reasonable belief that the person to be arrested has committed a crime. (People v. Pierson (1988), 166 Ill. App. 3d 558, 562, 519 N.E.2d 1185, 1188.) In this case, the police, before they arrested the defendant, were told by two people in addition to Almendarez that the defendant was at the scene on the night of the fire. Ramirez said he saw the defendant walking away from the house seconds before the fire. Rodriguez said he saw the defendant watching the fire. Almendarez told the police that the defendant admitted to him that he started the fire. When the information given by Almendarez corroborated what the police already knew, they arrested the defendant.

Information relied upon to establish probable cause to arrest must be supported by some “indicia” of reliability. (People v. James (1987), 118 Ill. 2d 214, 222, 514 N.E.2d 998, 1000.) This court will not reverse a trial court’s finding of probable cause to arrest unless it is manifestly erroneous. (People v. Trice (1991), 217 Ill. App. 3d 967, 974, 577 N.E.2d 1195, 1198.) The trial court decided that Almendarez was reliable because he was an identified person who had no criminal background and no motivation to lie. The court also decided that the defendant failed to show that Almendarez was coerced into making the statement. Almendarez implicated the defendant within five minutes after he began talking to the police. Although he was read his constitutional rights, he was not handcuffed and was not arrested. Detective Switski, who questioned Almendarez, testified that Almendarez was a possible suspect. We find no error in the trial court’s ruling based on this testimony.

The defendant next argues that the court excluded evidence at the hearing which tended to show lack of probable cause. He contends that the court abused its discretion when it excluded evidence of whether or not Almendarez was handcuffed on the way to the police station, evidence of how long Almendarez was at the station that night, evidence of how long Almendarez was at the station before he told them the defendant started the fire, and evidence that the police told Almendarez that they had witnesses who would put him “behind bars.” But the record shows that Almendarez testified he was not handcuffed and that he was in the interrogation room for eight hours that night. Also, Detective Switski testified that Almendarez implicated the defendant within three to five minutes after questioning began. As to the denial of Almendarez’s comment that the police told him that they had witnesses who would put him “behind bars,” the court has discretion whether to admit evidence and its decision will not be reversed absent a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Lucas (1992), 151 Ill. 2d 461, 603 N.E.2d 460.) Here the statement was offered without any foundation as to who said it. We find that the trial court did not abuse its discretion when it denied this testimony.

The defendant’s third argument is that the court limited the cross-examination of Detective Switski during the trial when it sustained objections to two questions: (1) “[H]ow many suspects have you interrogated in your years on the police department?” and (2) “Do you feel yourself an experienced interviewer of suspects?” He argues that the court prevented him from presenting the theory that his confession was coerced because the defendant was only 18 when he was interrogated and the detective was an experienced officer who brought undue pressure on the youth. We find that the background of the police detective was adequately explored. Defense counsel asked the detective about his history as a police officer, his training, the courses he took, the number of cases he handled in a year, and how long he had worked for the force. The court allowed the defendant to sufficiently cross-examine the detective about his experience and did not abuse its discretion when it sustained objections to the two questions. Lucas, 151 Ill. 2d 461, 603 N.E.2d 460.

The fourth issue raised by the defendant is that the prosecutor made a comment during closing argument that denied him a fair trial. In his closing argument the defense attorney asked rhetorically why Rodriguez and Partida, the other men who were with Ramirez on the night of the fire, did not testify. The prosecutor in rebuttal said, “I would suggest to you that, maybe, like Jose Ramirez, they’re scared to death, and if he wants them, if he thinks he can add anything, all he’s got to do is *** issue a subpoena.”

The defendant relies on People v. Mullen (1990), 141 Ill. 2d 394, 366 N.E.2d 222, for the holding that a prosecutor’s comments suggesting that witnesses were afraid to testify because the defendant threatened them are prejudicial and inflammatory when the comments are not based on any evidence in the record.

In this case the prosecutor did not claim that the defendant threatened anybody. He stated that Rodriguez and Partida were, like Ramirez, scared to testify. The prosecutor’s comment regarding Ramirez’s fear was based upon testimony in evidence. Ramirez testified that he did not tell the police what he saw until he was asked nine months later because, “I was afraid what happened to that house might happen to mine and my family.” Detective Switski testified that he interviewed Ramirez in the basement of the police station because Ramirez did not want to be seen. This evidence was allowed to explain why Ramirez did not tell the police what happened until nine months after the fire.

Prosecutors are allowed wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. (People v. Ray (1984), 126 Ill. App. 3d 656, 663, 467 N.E.2d 1078, 1083.) We find that the defendant was not substantially prejudiced by the prosecutor’s comment during rebuttal argument.

In addition, while it is generally improper for a prosecutor to comment on the defendant’s failure to call witnesses, it is proper to make such comments if invited by an earlier argument by defense counsel. (People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073-74, 401 N.E.2d 1069, 1074.) Here the prosecutor was responding directly to defense counsel’s argument and properly commented that the defendant could have subpoenaed Rodriguez and Partida.

The defendant’s fifth argument is that the prosecutor presented three pieces of improper evidence which denied him his right of confrontation. He argues that the court allowed impermissible hearsay when the detective testified that he intensified his efforts to find the defendant after he spoke to Michael Almendarez. However, the defendant did not object to this alleged improper testimony at trial and did not raise the issue in his post-trial motion. The issue is waived. People v. Pastorino (1982), 91 Ill. 2d 178, 193, 435 N.E.2d 1144,1151.

The defendant also contends that his right to confrontation was violated when the court allowed evidence that codefendant Nanez made a statement. The jury, he suggests, would necessarily infer that Nanez’s statement corroborated the defendant’s statement. This assertion is speculative and unsupported by the record based upon our review of the following testimony by the assistant State’s Attorney who took the recorded statements of the defendant and the codefendants:

In People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234, the court held that testimony recounting the steps taken in an investigation is admissible and does not violate the sixth amendment as long as the testimony does not reveal the substance of the statement. In this case the defense raised an issue that 10 hours passed from when the investigators claimed the defendant orally confessed to when his statement was reduced to writing. The State offered evidence to show that once the defendant orally confessed the assistant State’s Attorney then questioned the codefendants. That Nanez made a statement was offered to show the course of the assistant State’s Attorney’s investigation. The substance of the statement was not presented, nor was it revealed to be inculpatory. The trial court did not err when it allowed the fact of the statement in evidence.

The defendant further argues that he was prejudiced when the prosecutor asked Ramirez on direct examination if he told the jury the same thing he told the police before trial. However, the defendant objected at trial, the court sustained the objection, and subsequently instructed the jury to disregard the remark. Even if the prosecutor’s remark was improper, any error was cured. People v. Rowe (1983), 115 Ill. App. 3d 322, 327, 450 N.E.2d 804, 808.

The sixth issue the defendant raises is that the trial court erred when it denied him the opportunity to call witnesses who would testify that “other people” threatened to burn the same house the defendant was accused of burning. Such evidence is relevant and admissible only when a close connection can be demonstrated between the evidence offered and the commission of the offense; remote conduct of a person not connected with the crime may not be shown. (People v. King (1978), 61 Ill. App. 3d 49, 52, 377 N.E.2d 856, 859.) The defendant here does not identify any people, evidence, or testimony. He fails to establish a connection between the “other people” and the fire and offers no evidence of motive, physical description, or location of these people at the time of the crime. (See People v. Ma-berry (1990), 193 Ill. App. 3d 250, 263, 549 N.E.2d 974, 983.) We find that the trial court properly denied the defendant’s request.

We reject the defendant’s seventh contention that his conviction based on the aggravated arson statute is void because the statute does not require a standard of actual knowledge. The statute states in applicable part:

“A person commits aggravated arson when *** he knows or reasonably should know that one or more persons are present therein ***.” Ill. Rev. Stat. 1991, ch. 38, par. 20-1.1.

This court has previously considered the argument presented by the defendant and has held the language to be constitutional. People v. Williams (1992), 228 Ill. App. 3d 163, 592 N.E.2d 514.

We also reject the defendant’s eighth contention that the felony sentencing statute is unconstitutional. This statute provides in applicable part:

“[I]f the defendant *** is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—1(a)(1)(c).

The Elinois Supreme Court has held that a sentence of natural life imprisonment upon conviction of murdering more than one victim is constitutional. People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.

The defendant finally argues that a sentence of life imprisonment without parole is comparable to the death penalty and that it should not be imposed without considering mitigating factors that apply to imposition of the death penalty. The Supreme Court in Harmelin v. Michigan (1991), 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680, held that a mandatory life sentence without possibility of parole “cannot be compared with death.” The Court refused to extend the “individualized capital sentencing doctrine” to an “individualized mandatory life in prison without parole sentencing doctrine.” Harmelin, 501 U.S. at 995, 115 L. Ed. 2d at 865, 111 S. Ct. at 2702. See also Taylor, 102 Ill. 2d 201, 464 N.E.2d 1059.

For the reasons stated, we affirm the defendant’s conviction.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.


author: JUSTICE COUSINS JUSTICE MURRAY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSE CORREA, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—3422
    Opinion filed March 31, 1993.
    MURRAY, J., concurring in part and dissenting in part.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kevin Sweeney, and George J. Arnold, Assistant State’s Attorneys, of counsel), for the People.
    Levin & Perconti (Steven M. Levin, of counsel) and John C. Egan, Ltd. (John C. Egan, of counsel), both of Chicago, for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

The State appeals from the trial court’s dismissal of the four-count indictment against defendant Jose Correa bn double jeopardy grounds. According to the State, the order of dismissal was erroneous, defendant should have been barred from raising double jeopardy, and the trial court erred in accepting defendant’s guilty plea to the traffic charges.

On June 24, 1989, around 5:30 p.m., defendant was driving a Ford Ranger near 6300 West North Avenue in Chicago, when he struck Peter Caracci. Caracci died of multiple internal injuries. An open alcohol container was recovered from defendant’s truck, and defendant failed a sobriety test. Four citations were issued at the accident site: driving across the median, driving under the influence of alcohol, possession of alcohol by a motorist and operation of a vehicle without due caution. Ill. Rev. Stat. 1989, ch. 95V2, pars. ll-708(d), 11-501, 11-502; Chicago Municipal Code §27—255 (1984).

Subsequently, defendant was indicted for reckless homicide and driving under the influence of alcohol. The two counts of reckless homicide charged defendant with striking the victim while defendant’s blood-alcohol level was above .10, and driving under the influence of alcohol and at an excessive rate of speed. The case was assigned, and on December 8, 1989, defendant consented to a plea conference in the criminal division of the circuit court of Cook County. Nothing, however, then occurred.

On January 16, 1991, defendant was arrested and held in custody overnight. The following morning he appeared in traffic court, and the following colloquy occurred:

“[DEFENSE COUNSEL]: Judge, my name is John Egan on behalf of defendant, Jose Correa. I have not seen the old file, driving under the influence at 6232 West North Avenue.
THE COURT: It’s North — yeah, this is it. It’s a — driving under the influence, which is a misdemeanor, and then he has some petty offenses, such as, open alcohol, negligent driving; that’s striking a pedestrian; and 11 — 708, going the wrong way down a one-way roadway; and striking the traffic island.
[DEFENSE COUNSEL]: Would you — if he state’s [sic\ he’s prepared to plead guilty — we’re prepared to enter a guilty plea.
[ASSISTANT STATE’S ATTORNEY]: Your Honor, does the record indicate that he struck a pedestrian?
THE COURT: Yeah.
[ASSISTANT STATE’S ATTORNEY]: Is there any indication of how seriously injured the pedestrian was?
THE COURT: No.
[ASSISTANT STATE’S ATTORNEY]: I don’t think we’d be willing to accept the plea at this time.
THE COURT: But he has a right to plead guilty any time he wants to, Harry. I can’t stop him from pleading guilty.
[ASSISTANT STATE’S ATTORNEY]: Okay.”

The trial court asked if defense counsel wanted a continuance for sentencing, and counsel replied that defendant could be sentenced immediately. The trial court then questioned defendant concerning the four citations and accepted defendant’s plea. The court sentenced defendant to one year’s conditional discharge and imposed a $500 fine.

On March 14, 1991, defendant filed a motion to dismiss the four-count indictment on double jeopardy grounds. At the hearing on defendant’s motion, Assistant State’s Attorneys Kathy Hanlon and Edward Snow testified that they participated in the plea conference in defendant’s case, and the trial court indicated that defendant would receive a penitentiary term upon a plea. Snow further testified he was led to believe by defense counsel and the court that no other charges arising from the traffic fatality were pending against defendant.

The trial court granted defendant’s motion, finding that the United States Supreme Court’s decision in Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548,110 S. Ct. 2084, required such a result.

Initially, the State contends that the trial court erred in granting defendant’s motion to dismiss because there was no indication that the State would need to prove conduct in the reckless homicide trial for which defendant had been prosecuted. Under the test set forth in Grady, a successive prosecution is barred on double jeopardy grounds if “to establish an essential element of an offense charged in that prosecution, [the State] will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” (Grady v. Corbin, 495 U.S. at 521, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) The State contends that the trial court erred in granting defendant’s motion because conduct other than that for which defendant was convicted could have been utilized as an essential element of the reckless homicide charge.

In the instant case, the indictment charged defendant with one count of reckless homicide based upon striking a pedestrian while defendant’s blood-alcohol content was greater than .10, and the second count of reckless homicide charged defendant with driving under the influence of alcohol at an excessive speed and striking the victim. Defendant pleaded guilty to four traffic citations, specifically for driving across the median, driving while under the influence of alcohol, possession of alcohol by a motorist and negligent driving by striking a pedestrian. While the State contends that it need not rely on conduct for which defendant has been convicted to establish reckless homicide, our review of the indictment and defendant’s previous convictions reveals that the State must rely upon conduct for which defendant was previously convicted in order to conform to the offenses charged in the indictment.

In the instant case, defendant set forth evidence indicating that the indictment for reckless homicide presents charges for which he was previously placed in jeopardy. Once defendant presents a nonfrivolous showing on this issue, the State has the burden of demonstrating that the charged offenses are separate and distinct from the previously prosecuted offenses. (People v. Stefan (1992), 146 Ill. 2d 324, 341, 586 N.E.2d 1239, citing Corbin, 495 U.S. at 522 n.14, 109 L. Ed. 2d at 565 n.14, 110 S. Ct. at 2094 n.14.) The State did not meet this burden, and the indictment was properly dismissed on double jeopardy grounds.

The State further asserts that defendant should be barred from raising double jeopardy based upon defense counsel’s failure to inform the court of the death of the victim and the pending felony charges. In support of this contention, the State cites Semmens v. Semmens (1979), 77 Ill. App. 3d 936, 396 N.E.2d 1282, for the proposition that attorneys must be honest and forthright in their course of conduct with the court.

Semmens is clearly distinguishable from the instant case. In Semmens counsel submitted a settlement agreement in a divorce action without informing the court that there was an addendum to the agreement. Further, counsel presented testimony that the settlement agreement was fair, but failed to present any information about the modification. The court concluded that this situation constituted misrepresentation by counsel, who did not simply remain silent; rather, counsel informed the court that the parties had reached a settlement agreement and presented testimony concerning the agreement without divulging that this did not represent the actual agreement.

In the instant case, defense counsel neither informed the court during the proceedings on the traffic citation that a fatality was involved nor that felony charges were pending against defendant. This silence did not present a direct misrepresentation. We do not approve the conduct of counsel in permitting the court to err in the face of his knowledge that the court was proceeding under a missupposition. However, such conduct on the part of counsel does not invalidate the judgment entered by the court so as to preclude the attachment of double jeopardy.

The State asserts that defense counsel procured the initial prosecution and then wrongfully failed to disclose the fatality and felony charges. However, defendant was arrested on January 16, 1991, held in jail overnight and his case was called in traffic court the following morning. At that time, defense counsel informed the court that defendant wished to enter a plea of guilty. This factual scenario does not indicate that defense counsel procured the prosecution. Thus, we reject this argument.

Finally, the State asserts that the trial court erred in accepting defendant’s guilty plea to the traffic charges, and since the initial convictions were in error, they should not serve to bar the criminal prosecution. Defendant responds that we do not have jurisdiction to consider this claim because the State did not perfect an appeal.

In the instant case, the State properly appealed from the dismissal of the indictment. Consideration of the previous proceeding is necessary to assess the double jeopardy claim, so it is appropriate that we consider the State’s argument to the extent necessary to evaluate the double jeopardy claim despite the absence of a direct appeal from the initial convictions. People v. Pankey (1983), 94 Ill. 2d 12, 445 N.E.2d 284.

In People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, the defendant’s indictment for theft was dismissed on double jeopardy grounds based upon his prior acquittal for receiving stolen property. However, the Illinois Supreme Court held that the initial prosecution was a sham which did not subject the defendant to jeopardy. After the prosecutor informed the court that the defendant did not commit the offense and moved to dismiss the charges, the trial judge proceeded to trial, at which no evidence was presented, and then acquitted the defendant.

There is an old proverb “haste makes waste.” In this case, the haste by the trial judge in accepting the defendant’s guilty plea to the charge of driving while under the influence without full knowledge of the circumstances was a mistake.

The fifth amendment guarantee against double jeopardy (U.S. Const., amend. V), enforceable against the State under the fourteenth amendment (U.S. Const., amend. XIV), affords individuals three types of protection: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Stefan (1992), 146 Ill. 2d 324, 586 N.E.2d 1239; People v. Porter (1st Dist. October 9, 1992), No. 1-92-1388, appeal allowed (1993), 148 Ill. 2d 650).) The Illinois Constitution provides that “[n]o person shall be compelled in a criminal case to *** be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, §10.

The circumstances in the case at bar are analogous to the circumstances in Grady v. Corbin (495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084). We are compelled to follow the decision in Corbin.

Accordingly, we hold that the defendant was subject to jeopardy when the trial court accepted his guilty pleas.

The State argues that the court’s stated belief that the guilty plea had to be accepted was incorrect. Even so, the mistake does not establish a basis for reversing the traffic convictions. Since the defendant was subject to former jeopardy, this successive prosecution is barred.

For the foregoing reasons, the order of dismissal is affirmed.

Affirmed.

GORDON, P.J., concurs.

JUSTICE MURRAY,

concurring in part and dissenting in part:

Although I agree with the majority’s result based on the existing law, I am of the opinion we should defer deciding the case until the Illinois Supreme Court decides People v. Porter (1st Dist. October 9, 1993), No. 1 — 92—1388, appeal allowed (1993), 148 Ill. 2d 650. The Porter case involves double jeopardy and its application to a previous acquittal by a Federal court. A decision by the supreme court in that case could determine the eventual outcome of this appeal. Correa is not incarcerated so that no one is injured by the delay.

The statement in the majority opinion “haste makes waste” may well apply to this court as it does to the trial court’s rapid acceptance of Correa’s plea.


author: JUSTICE SCARIANO

text:
      In re MARRIAGE OF WANDA YOUNG, Petitioner-Appellee, and KEITH L. YOUNG, Respondent-Appellant.
    First District (2nd Division)
    No. 1—91—1088
    Opinion filed April 13,1993.
    Anthony P. Pacelli, of Chicago, for appellant.
    Griffith & Jacobson, of Chicago (Irvin J. Jacobson and James E. Mahoney, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On September 14, 1989, petitioner Wanda Young filed for a dissolution of her marriage to respondent Keith L. Young, a personal injury attorney. On September 29, 1989, she filed her first notice to produce which called for respondent to provide, within 28 days, various documents regarding his income, assets and expenses, including bank statements and tax returns as well as financial records pertaining to both resolved and pending cases relating to his law practice. Respondent refused to comply with the notice and denied access to any records pertaining to his law practice because he claimed that they were protected by the attorney-client privilege. On January 23, 1990, when the trial court ordered both parties to submit briefs on the issue of the applicability of the attorney-client privilege to the demand for discovery, respondent informed the court that he would produce all documents concerning which he claimed no privilege.

Although the record does not disclose the date on which such briefs were to be submitted to the court, as of March 8, 1990, respondent had not filed his brief nor had he produced any documents; accordingly, the court entered an order on March 15, 1990, which required him to submit his brief within 14 days and to produce all documents to which he did not assert any claim of privilege within 21 days. As of June 7, 1990, however, respondent still had not submitted his brief or produced any documents; nevertheless, the trial court granted respondent an additional week to file his brief, and this time he complied. On June 26, 1990, the court held that none of the financial records sought in discovery, including those relating to attorney fees received by respondent, were privileged, and ordered him to produce the records pertaining to all his closed and pending cases from the time period between January 1, 1987, “to the present.”

Although the June 26 order did not provide any specific date by which respondent was to produce those records, as of August 1, 1990, he had yet to supply all the required documents; accordingly, the court entered another order on that date, requiring both parties to produce all their financial records, including bank statements, cancelled checks, check stubs, ledgers and journals, within 14 days. Because respondent persisted in his failure to produce, the court entered yet another order on September 11, 1990, which provided in part:

“1. Each party MUST comply with all outstanding discovery requests within seven (7) days hereof.
2. This matter is set for 9:15 a.m. on Sept. 24, 1990 for status as to discovery and consideration by the Court of the imposition of sanctions for failure to comply.” (Emphasis in original.)

Respondent did not tender any documents until the morning of the status hearing on September 24, 1990, and even then he had not produced much of the financial data which the court had ordered him to provide. When asked by the judge for the reasons as to why these documents had not been produced, respondent’s attorney stated:

“I can’t account for the financial records. I can’t. I have no further information about that, judge. I wish I could tell the court.”

The court then told counsel for respondent:

“Mr. Young doesn’t believe these Court orders. Mr. Young’s pleadings will be stricken and a default will be entered. Further sanctions will be reserved.
Mr. Jacobson, submit your petition for fees. * * *
Mr. Young should be told that the Court has been very patient.”

Petitioner’s counsel submitted his petition for fees in which he itemized his time and services, requesting $11,240. After an evidentiary hearing, the court entered an order on October 31, 1990, awarding petitioner $7,500 for respondent’s failure to comply with its discovery orders, stating in its order that the fees were imposed pursuant to section 508(b) of the Marriage and Dissolution Act (section 508(b)) (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)). The court’s order also allowed respondent to reinstate his pleadings, conditioned upon his filing with the court a Supreme Court Rule 214 (134 Ill. 2d R. 214) affidavit stating that he had complied with discovery and providing reasons for his previous noncompliance.

On November 30, 1990, respondent filed a motion to reconsider which, after a brief hearing, the judge denied on March 15, 1991, explaining to his new counsel that “we have gone through this case many, many, many months, and we have had a totally recalcitrant respondent.” On April 3, 1991, respondent filed his notice of appeal from the trial court’s orders entered on October 31, 1990, and March 15, 1991. Thereafter, on April 9, 1991, the trial court entered an order which amended the judgment order of March 15, 1991, to include Supreme Court Rule 304(a) (134 Ill. 2d 304(a)) language.

I

Although respondent challenges on appeal the trial court’s imposition of attorney fees as a sanction against him, we first address sua sponte, as we must, whether we have jurisdiction of the case before us. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252, 1253.) Illinois Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) allows an appeal to be taken from a final judgment as to one or more but less than all of the claims in an action if the trial court makes an express finding that there is no just reason to delay enforcement or appeal of the judgment. However, the trial court cannot make a nonfinal order final and appealable simply by including in its order the requisite Rule 304(a) language. Metzger v. Fitzsimmons (1988), 175 Ill. App. 3d 674, 675, 529 N.E.2d 1179, 1180.

The general rule in this State is that discovery orders are not final and appealable until the underlying action is completed. (Krasnow v. Bender (1979), 78 Ill. 2d 42, 47, 397 N.E.2d 1381, 1383; see 4 R. Michael, Illinois Practice §35.6, at 199 (1989).) An exception to that rule, however, is that an order cast in terms of a contempt proceeding wherein sanctions are imposed is considered to be a final and appealable order. (People ex rel. Scott v. Silver - stein (1981), 87 Ill. 2d 167, 172, 429 N.E.2d 483, 485; see 4 R. Michael, Illinois Practice §35.6, at 199-200 (1989).) Our supreme court in Silver stein reasoned that “[t]he imposition of a sanction for contempt is final and appealable because, although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises.” (Silverstein, 87 Ill. 2d at 172, 429 N.E.2d at 485.) It is clear, however, that an order merely assessing fines and costs for discovery violations, unless imposed pursuant to a contempt of court determination, is not final and appealable. See 4 R. Michael, Illinois Practice §35.6, at 199 (1989).

In the case sub judice, the trial judge’s order expressly stated that she was awarding attorney fees to petitioner pursuant to section 508(b) as a sanction for respondent’s violation of her discovery orders. However, the court surely must have contemplated sanctioning respondent under Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) for the reason that it struck his pleadings and entered a default on his behalf, sanctions which are expressly made available to the trial court under Rule 219(c), but are nowhere mentioned or permitted in section 508(b). No matter, for an order assessing attorney fees under either provision is nothing more than a discovery sanction which cannot in any sense be considered a finding of contempt. Here, the hearing on sanctions and the steps leading thereto took on none of the characteristics of a contempt proceeding, nor is the order from which respondent appeals “cast in terms of a contempt proceeding.” (Silverstein, 87 Ill. 2d at 171, 429 N.E.2d at 485.) Accordingly, we hold that the order in issue does not fall under the contempt exception to the general rule that discovery orders imposing sanctions, even those which include the proper Rule 304(a) language, are not final and appealable; accordingly, we dismiss respondent’s appeal for want of jurisdiction.

Appeal dismissed.

McCORMICK, P.J., and HARTMAN, J., concur.

      We note that, contrary to Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d 341(e)(4)(ii)), respondent has not included the basis of our jurisdiction in his brief. See Servio v. Pawl Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 755, 570 N.E.2d 662. 664.

      Supreme Court Rule 219(c) provides in pertinent part:
      “If a party *** unreasonably refuses to comply with any *** [discovery request] oqr fails to comply with any court order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
      (i) that further proceedings be stayed until the order or rule is complied with;
      (ii) that the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;
      (iii) that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue; (iv) that a witness be barred from testifying concerning that issue;
      (v) that, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that his action be dismissed with or without prejudice; or
      (vi) that any portion of his pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue.
      In lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct, and by contempt proceedings compel obedience by any party or person to any subpoena issued or order entered under the rules.” 134 111. 2d R. 219(c).


author: JUSTICE O’CONNOR PRESIDING JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM McCRACKEN, Defendant-Appellant.
    First District (1st Division)
    No. 1—92—0621
    Opinion filed April 12, 1993.
    MANNING, P.J., dissenting.

      Rita A. Fry, Public Defender, of Chicago (Kim L. Sorrells, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Anthony Carl, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant William McCracken appeals from a judgment revoking his probation and sentencing him to three years’ imprisonment for burglary, attempted residential burglary and theft. The issues on appeal are: whether he received sufficient notice of the charges against him to satisfy due process; and whether the State satisfied its burden of proof.

We first address defendant’s argument that his due process right to notice of the probation revocation proceedings was violated by the State’s failure to file a petition to revoke probation. The law provides that only minimum due process requirements need be applied at probation revocation hearings. (People v. Acevedo (1991), 216 Ill. App. 3d 195, 200, 576 N.E.2d 949.) A defendant charged with having violated probation is entitled to know the nature of the charges in advance of the hearing to revoke his probation. (People v. Price (1960), 24 Ill. App. 2d 364, 376, 164 N.E.2d 528.) Here, the record does not contain a copy of a petition to revoke probation. However, the common-law portion of the record contains copies of half sheets (memoranda of orders) for each of defendant’s four convictions for which he was placed on probation. Those half sheets contain the following entries:

“8-15-91 Disko PP B/A 9/12/91
9-12-91 Disko PP B/A 9-27-9/7
9-27-91 Disko PP H.O.C. 9-30-91
9-30-91 Disko PP B/A 10-7-91 STATUS
10-7-91 Disko PP Def in Custody B/A 10-16-91
10-16-91 Disko PP B/A 11-14-91 W/S/VOP hearing
11-14-91 Disko PP B/A 12-13-91 W/S/VOP hearing
1-13-92 Disko PP VOP hearing Sworn test heard
Stip test heard deft found guilty of
VOP PSI ord. 10/d 12-30-9[.]”

During closing argument at the hearing, defense counsel referred to the fact that count I of the “indictment” charged defendant with theft. It is clear from this record that defendant was afforded sufficient notice of the charges against him.

In making this finding, we note the following holding in People v. Strickland (1991), 211 Ill. App. 3d 183,190-91, 569 N.E.2d 1202:

“A condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. *** If a defendant’s due process rights require a fair determination that acts forming the basis of the petition occurred, those rights cannot be respected if no petition has been filed. When no petition for revocation is on file, a defendant cannot possibly know the nature of the allegations with which she will be confronted when the State seeks to terminate her probation.”

We decline to apply that holding because of factual distinctions between Strickland and the present case. In Strickland, defendant was sentenced in August 1985 to 18 months’ probation and ordered to pay court costs, perform public service work and report to the court services department. In February 1987, the State filed a petition to revoke probation alleging that defendant failed to comply with the conditions of probation. The following April, defendant admitted and stipulated to certain allegations and . the court found for the State. Defendant was resentenced to 24 months’ probation and ordered to comply with other conditions, including paying an undetermined amount of restitution. In March 1989, a hearing was held to determine the amount of restitution. The parties agreed that because defendant’s probation was due to expire in May 1989, the term of her probation would have to be extended. The court set a hearing date of September 27, 1989, for a status report. Two weeks prior to that date, the court services department informed the court that defendant had made no restitution payments. At the hearing, the State indicated that it did not know whether it was seeking to have probation terminated, that it supposed it would have to file a petition and that it supposed the proceeding was a status hearing. The court found defendant to be in violation of probation and set resentencing for November 2, 1989. On that date defendant was resentenced to two years’ probation. The following December the State filed a petition to revoke probation. In January the court held a hearing on the petition and found in favor of the State. On appeal, defendant argued that the court’s order of September 27 had to be reversed because the evidence failed to prove that her failure to pay restitution was willful. In rejecting defendant’s position, the court designated the September 27 hearing as a probation modification proceeding, not a probation revocation proceeding.

Unlike Strickland, in the present case there was no confusion between the parties as to the nature of the proceedings. There had been a series of appearances before the court at which both parties were present and agreed to continuances. Both parties were also present at a status hearing, and at a subsequent hearing when a date was set for the probation revocation hearing. In Strickland the court found defendant to have violated probation at a status hearing. Here, defendant was found to have violated probation at a hearing that was designated as a probation revocation hearing of which both parties had prior notice. Although the record does not contain a copy of a revocation petition, it does contain copies of orders by the trial judge indicating that a violation of probation hearing was set for each of defendant’s four felony convictions for which defendant had been placed on probation. As the State points out, in order for those orders to have been entered by the court, the State must have motioned for probation revocation, and defense counsel must have received notice of the motion in order to have been present at the several proceedings prior to the actual revocation hearing. Also, as previously discussed, defense counsel’s reference at the hearing to count I of the “indictment” indicated that defendant had notice of the allegations on which the State was relying in seeking to have defendant’s probation revoked. Under the facts and circumstances of this case, we find that defendant had sufficient notice of the alleged violation so as to satisfy due process, and that the proceedings against him were fundamentally fair.

Defendant also contends that the State failed to prove that he was on probation and that he violated probation. The State has the burden of proving the violation by a preponderance of the evidence. (People v. Beard (1974), 59 Ill. 2d 220, 226, 319 N.E.2d 745.) Defendant argues that because the record does not contain a copy of a petition to revoke probation and because the court did not take judicial notice of the fact that defendant was on probation, the State failed to prove that he was, in fact, on probation. We disagree. The record indicates that Judge Disko entered an order of probation in March 1990. Between August 1991 and October 1991 she granted a series of continuances on this matter and conducted a status hearing. It is noteworthy that at the sentencing hearing the judge commented:

“Mr. McCracken, you have been on probation to this Court. On several occasions I have tried to put you on drug programs. I know you have a drug problem. That’s why I have tried to
get you into these programs and you have not successfully completed them.”

The State proved inferentially and by a preponderance of the evidence that defendant had been on probation.

We next consider whether there was sufficient proof that defendant violated probation. At the revocation hearing, police officer Jasbro Romano testified that on August 9, 1991, he went to the Edens Motel to execute a warrant for defendant’s arrest. When he entered the motel room, defendant and another man were in the bathroom. Defendant indicated that the two men were renting the room. Officer Romano recovered from the room a necklace, a wristwatch, a camera and a bag of old coins. The watch was engraved with the name Edward Messit and Illinois Bell Telephone Company. Defendant told the officer that the items were his.

Detective Richard O’Bermaier testified that defendant told him that he traded drugs for the property. In the detective’s words:

“I asked [defendant] where he had gotten this property from, and he said that a lot of people come to the hotel and he buys the property from them. I said well, how do you buy it from them.

He said well, we trade dope for the property.”

The detective contacted Illinois Bell and learned that it had recently presented as a retirement present a watch to an employee named Edward Messit. Messit subsequently went to the police station and identified the property. The parties stipulated that the value of the property exceeded $300.

Evidence of recent, exclusive and unexplained possession of recently stolen property by an accused, either singly or jointly with others, may give rise to an inference of guilt of theft. (People v. Johnson (1978), 64 Ill. App. 3d 1018, 1021, 382 N.E.2d 85.) Bearing in mind that this case involves a revocation proceeding, which has a different burden of proof than a criminal trial, we note that due process precludes a conviction for theft on the basis of exclusive possession absent corroborating evidence. (People v. Munoz (1981), 101 Ill. App. 3d 447, 428 N.E.2d 624.) A defendant who chooses to explain his possession of stolen property in order to rebut the inference of guilt must offer a reasonable story or be judged by its improbabilities. People v. Daniels (1983), 113 Ill. App. 3d 523, 447 N.E.2d 508.

Applying these principles to the instant case, we find that the State proved by a preponderance of the evidence that defendant committed the offense of theft. At the time of his arrest defendant possessed a watch, necklace, camera and a bag of old coins. The State proved that the property was recently stolen by the detective’s testimony that the owner identified the property as belonging to him and that Illinois Bell had recently presented the watch to Messit. The inference of guilt arising from defendant’s possession of the property was corroborated by this same evidence. Moreover, defendant’s statement to the detective that he traded drugs for the property, while not an improbable explanation, provided further evidence of defendant’s culpability because, as the State argues, it created a reasonable inference that defendant knew the property was stolen. Consequently, we conclude that the State satisfied its burden of proof.

For the reasons stated above, the judgment of the circuit court is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request and assess defendant $50 as costs for this appeal.

Judgment affirmed.

CAMPBELL, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

I note that while it is well established that only “minimum requirements” of due process be applied at a probation revocation hearing, due process mandates that a probationer have notice of the alleged violations. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(f).) A condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. (People v. Strickland (1991), 211 Ill. App. 3d 183, 190, 569 N.E.2d 1202.) The state of the instant record reveals that no petition was filed and defendant did not receive notice of the charges. Hence, no revocation hearing should have occurred.

The majority infers an awful lot from the insubstantial record in this case. It also suggests that the instant case, unlike People v. Strickland (211 Ill. App. 3d 183, 569 N.E.2d 1202), is devoid of confusion between the parties as to the nature of the proceedings. This appears to be based on the characterization in Strickland of the proceedings as a status hearing, whereas in the case at bar, the proceedings were designated as a revocation hearing. I find this distinction to be inconsequential. The fact of the matter is there was no petition or any other document alleging the act(s) of violation to which defendant was responding.

My colleagues refer to half sheet entries which reflect continued dates and characterizations of events described, i.e., status and VOP hearing. They also allude to a statement by counsel at the conclusion of the hearing that “Count I of the indictment” charged defendant with theft. They then conclude that the aforementioned constitute a clear indication that defendant was afforded sufficient notice of the charges against him. I vehemently disagree.

One of the cardinal precepts that courts of review are bound to acknowledge is that our review of cases on appeal is subject to limitations, i.e.-, rules governing review and the trial court record. (See 134 Ill. 2d R. 301 et seq.) With respect to the trial court record in the case at bar, it is barren as it pertains to notice of an alleged charge or charges. The common law record reveals no petition or any other written charge of a probation violation. Nor does the half sheet, referred to by the majority, reflect any entries evidencing the filing of such a petition. Additionally, the half sheet entries only reflect that defendant was in custody and the case was continued from time to time. There is no transcript of what occurred at each court appearance, with the exception of the hearing.

The majority correctly states the law. It cites language from People v. Strickland (211 Ill. App. 3d 183, 569 N.E.2d 1202), which sets forth the general, time-honored principle that a condition precedent to the revocation of a defendant’s probation is that there must first be on file a petition to revoke probation. It then proceeds to conjecture and speculate about what the defendant “must have known” without any support in the record before this court. It is a far cry from knowing that a revocation hearing has been set and knowing why it has been set. In People v. Butler (1985), 137 Ill. App. 3d 704, 711, 484 N.E. 2d 921, this court stated “defendant is entitled to know the nature of the charge in advance of any hearing wherein he is alleged to have breached the order granting him probation and must be given an opportunity to answer any charge that has been preferred against him.”

Even as to probation revocation, defendant is entitled to “the minimum protections of due process” (emphasis added) (Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60, which includes notice of the charge. It is far from clear what counsel was referring to when she made reference to an indictment. This is especially so when a probation revocation is not usually initiated by indictment and when there is no such document contained in the record. The entire record contains four indictments. They are as follows: (1) residential burglary and possession of burglary tools occurring on October 19, 1976, wherein the complainant is one William Moran; (2) two counts of theft occurring on August 8, 1989, wherein one Linda Camras is the complainant; (3) attempted residential burglary occurring on September 3, 1989, wherein the complainant is Joanne Barrett, and (4) attempted residential burglary and possession of burglary tools occurring on October 5, 1989, wherein Sally Gonzalez is the complainant. This recitation becomes meaningful after reviewing the transcript of the revocation hearing where it is revealed that the property which is allegedly the subject matter of this violation belonged to a couple named Messit and no specific date of offense is alleged although the property was recovered from the defendant’s presence in August of 1991. Hence, after meticulously and painstakingly examining this record, no complaint, indictment, information, petition or charge in any form could be found which alleges an occurrence of August 1991 and a complainant named Messit (Edward and Lorraine). The record in this case is abysmal, and this court should not countenance such shoddiness by affirming the trial court in light of the state of this record. The United States Supreme Court held in Thompson v. City of Louisville (1960), 362 U.S. 199, 4 L. Ed. 2d 654, 80 S. Ct. 624, that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. Thus, I agree wholeheartedly with the “no evidence” doctrine of Thompson, reiterated in Jackson v. Virginia (1979), 443 U.S. 307, 314, 61 L. Ed. 2d 560, 570, 99 S. Ct. 2781, 2786, that an accused is accorded “Freedom from a wholly arbitrary deprivation of liberty.”

If in fact defendant has waived this issue, I would invoke the doctrine of plain error pursuant to Supreme Court Rule 615 (134 Ill. 2d R. 615). The error in this case affects substantial rights and, in the interest of justice, should be noticed.

Not only would I find a deprivation of due process, but there is also a breach of the statutory provision (see Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(a)) which requires the State to file a written petition setting forth the allegations which constitute a violation of the terms of defendant’s probation.

Accordingly, I would reverse and remand for further proceedings.


author: JUSTICE McNULTY

text:
    ROBERT G. HAYWOOD, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. SUPERIOR BANK F S B et al., Defendants-Appellees.
    First District (5th Division)
    No. 1 — 92—0556
    Opinion filed April 16,1993.
    Schiff, Hardin & Waite, of Chicago (Marcus A. Martin, of counsel), for appellant.
    Hinshaw & Culbertson, of Chicago (William G. Swindal, Peter D. Sullivan, and Joshua G. Vincent, of counsel), for appellee Superior Bank FSB.
    Ray H. Rittenhouse and Edward J. Malek, both of Rittenhouse & Tamil-low, of Chicago, for appellee Vanguard Management Corporation.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Robert G. Haywood appealed the judgment of the circuit court denying his request for class certification of the group of plaintiffs currently or formerly residing in the Green Brier or Commodore apartment buildings, who had entered into rental agreements with either defendant Vanguard Management or defendant Superior Bank pursuant to which the defendants received a security deposit for a period of at least six months, without paying interest on such security deposit within 30 days after the end of each 12-month period as statutorily required. Plaintiff also appealed the court’s denial of his individual claim as well as its determination that he, personally, lacked standing to bring this action and could not act as a class representative, because he had entered into an accord and satisfaction with defendants. For the reasons which follow, we reverse the judgment of the circuit court as to both the certification of the class, plaintiff’s individual claim and his standing as class representative.

Plaintiff Haywood was a tenant in a rental apartment unit at the Green Brier building located at 559-561 West Surf Street, Chicago, Illinois, from May 1, 1988, until April 30, 1990. Defendant Superior Bank owned approximately 40 apartment units at the Green Brier, and approximately 116 units in the Commodore building located across the street. Defendant Vanguard Management was Superior Bank’s property management agent with respect to the aforementioned properties. Haywood paid Vanguard a security deposit of $795 at the time he entered into a lease with Vanguard in May 1988. When Haywood’s rent was increased at the end of the first one-year term, he paid an additional security deposit of $40. Neither Superior Bank nor Vanguard Management paid Haywood the 5% annual interest on his security deposit within 30 days after the end of his first-year rental period in May 1989, as required by both the Security Deposit Interest Act (Ill. Rev. Stat. 1989, ch. 80, pars. 121, 122) and section 5—12—080(c) of the residential landlord and tenant ordinance of the Municipal Code of the City of Chicago (Chicago Municipal Code §5—12—080(c) (1989)). However, in May 1990, when plaintiff vacated the apartment, Vanguard sent him a check for $711.50, which represented the security deposit at issue, plus accrued interest, but less cleaning charges. Although plaintiff admits in his complaint that he “strenuously objected” to the amount of this check, he nevertheless cashed it. Six months later, he filed this lawsuit on behalf of all former and current tenants, who, like himself, had allegedly been deprived of the yearly payments of security deposit interest by defendants, Superior Bank and Vanguard Management.

The prerequisites for the maintenance of a class action are as follows:

“(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1989, ch. 110, par. 2-801.)

Only the second and third requirements are at issue in the case at bar. Certification of a class is within the sound discretion of the trial court, and such determination will be disturbed on review only if there is an abuse of discretion or if impermissible legal criteria are applied. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095, 582 N.E.2d 1362.) In the instant action, plaintiff maintains that the trial court relied on impermissible legal criteria by using the common question of law and fact analysis in McCabe v. Burgess (1979), 75 Ill. 2d 457, 389 N.E.2d 565, Rodmaker v. Johns Holding Co. (1990), 205 Ill. App. 3d 520, 563 N.E.2d 1175, and Gutanslcy v. Advance Mortgage Corp. (1981), 102 Ill. App. 3d 496, 430 N.E.2d 122. Plaintiff maintains that these analyses are inopposite and instead relies on the authority provided by another line of cases: Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478; Slimack v. Country Life Insurance Co. (1992), 227 Ill. App. 3d 287, 591 N.E.2d 70; and Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 744.

In McCabe, the Illinois Supreme Court considered the common question of law and fact requirement as a prerequisite for the maintenance of a class action. This case involved a group of drug users who had been convicted under the 1969 Illinois Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22—49.1) for the sale, possession, or control of marijuana. This Act had subsequently been found unconstitutional as applied to marijuana users. Additionally, it had been determined that all those convicted under the Act had a right to the ex-pungement of their convictions and the return of any money and court costs attributable to those convictions. McCabe attempted to bring a class action on behalf of a class of persons from Champaign County convicted for violations of this act. The McCabe court found that since the only common questions at issue were the statute’s constitutionality and the recovery rights of persons convicted under it and that these had already been adjudicated in prior cases, there were no predominant questions left to decide by certifying a class of wrongfully convicted drug users.

In Gutansky, which relied on McCabe, plaintiffs attempted to bring a class action to recover statutory penalties for a mortgagee’s failure to execute and record releases of mortgages within 30 days of the satisfaction of the underlying debt as required by law. The Gutansky court held that under the legislation concerning mortgage releases, the right of the parties similarly situated to those plaintiffs to recover under the statute was settled beyond a reasonable doubt, as defendants in that case had waived the issue of the validity of the applicable statute. Therefore, all that remained to be determined was whose mortgages were not timely released and the amount of attorney fees to be awarded in addition to the statutory penalty. On this basis, the Gutansky court determined that there were no common issues of law or fact and denied class certification.

Likewise in Rodmaker, the appellate court determined that since the validity of the statute at issue (one which regulated a creditor’s serving of notice before pursuing a wage assignment) was not in doubt, the rights of the persons protected under the statute to proceed upon easy proof of a statutory violation was clear. The Rodmaker court found that because of the absolute nature of the liability, the common question would be one of “easy decision” and “would not seem to predominate.” In making its decision, the Rodmaker court also considered the fact that additional plaintiffs’ claims for compensatory damages would require individual proof that would complicate any other common questions.

Plaintiff’s contention that the trial court incorrectly relied on the McCabe line of cases incorporates his argument that the trial judge also incorrectly framed the common questions at issue. Plaintiff argues that although the trial judge considered two common questions (the applicability of the State and local legislations regarding security deposit interest and whether tenants were residents of the Green Brier and Commodore apartments), these were not the only common questions. The additional questions cited by plaintiff relating to defendants’ liability are whether defendants have a uniform practice of never paying annual interest in accordance with the Chicago ordinance and the Security Deposit Interest Act, and whether because of this practice, defendants have violated and are therefore liable under the ordinance and Act. Since no determination regarding these issues has been made, plaintiff urges that these are the common questions and that they remain unresolved. In support of the argument that a uniform business violation may be considered as a common question in class certification proceedings (despite the fact that individual damages must be resolved), plaintiff cites Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 19, 428 N.E.2d 478, 485, Slimack v. Country Life Insurance Co. (1992), 227 Ill. App. 3d 287, 591 N.E.2d 70, and Purcell & Wardrope Chartered v. Hertz Corp. (1988), 175 Ill. App. 3d 1069, 530 N.E.2d 994.

In Gillette, the Illinois Supreme Court affirmed certification of a class of individuals suing for the defendant’s uniform scheme resulting in multiple violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.). The Gillette plaintiffs, who constituted a nationwide group, claimed to have been deceived by defendant’s promotional promise to supply a table lighter upon proof of purchase of two Gillette throwaway lighters. The Gillette court found that the series of essentially identical transactions between the plaintiffs and Gillette, which gave rise to their claim for table lighters, presented common questions of fact and law. It noted that the existence of individual issues, individual defenses of individual damages, multiple theories of recovery, or even the inability of some class members to obtain relief because of a particular individual factor will not, standing alone, defeat a class certification if the common questions of fact or law are otherwise predominant.

In Purcell, the appellate court relied on Gillette and ruled that because of Hertz’s uniform practice of not repaying security deposits and accrued interest, certification was proper for a class of nationwide automobile lessees seeking to recover such security deposits and accrued interest, even though Hertz contended that individual questions such as varying lease terms, amounts of interest due under each lease, liability for damage to the vehicle, and excess mileage on the vehicle predominated over common questions regarding liability.

The Slimack court relied on both Gillette and Purcell in certifying a class of plaintiff insurance agents alleging defendants’ breach of contract due to certain wrongful and uniform business practices, namely reassigning blocks of accounts from existing agents to new agents or coercing existing agents to meet certain production require-merits not included in their practice with defendants. (Slimack, 227 Ill. App. 3d at 299, 591 N.E.2d at 78.) The Slimack court concluded that class certification was appropriate based on the common question presented by defendant’s uniform scheme or plan even though defendant argued that individual issues such as the reasons for each individual reassignment predominated.

Plaintiff finally argues the applicability of our recent decision in McCarthy v. La Salle National Bank & Trust Co. (1992), 230 Ill. App. 3d 628, 595 N.E.2d 149, to the problem of evaluating a predominating common issue of law or fact in class certification suits. Although McCarthy was before the court in a different procedural posture (on the trial court’s granting of defendant’s section 2—615 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) motion to dismiss), it is nevertheless instructive on the issue under consideration. In McCarthy, plaintiff sought to represent a group of defendants’ current and former nondefaulting tenants who did not receive yearly interest on their security deposits. The alleged common question of law predominant among the class members was whether defendants, as a matter of consistent business practice, violated State and city laws. The alleged common question of fact was that each violation occurred in the same manner, in that defendants wilfully failed to pay interest to each tenant. In its analysis, the McCarthy court distinguished McCabe, Gutansky, and Rodmaker as involving situations where plaintiffs’ right to recover was established beyond a reasonable doubt. It noted that the alleged common questions in the case before it were not uncontroverted notwithstanding defendants’ motion to dismiss which admitted the allegations in the plaintiffs’ complaint.

After careful consideration of all aforementioned authorities, we conclude that the trial court’s analysis based on the McCabe line of cases is correct only to the extent of its identification of the common questions as the applicability of State and local laws regarding security deposit interest and whether tenants were residents of the Commodore and Green Brier apartments. We find this definition of the common questions to be too narrow. A more accurate delineation of the common questions confronting the tenant plaintiffs would include the issues of whether defendants followed a uniform scheme or plan of not paying annual security deposit interest and whether, in so doing, they violated State and city ordinances. Having rephrased the common questions, we are persuaded by the reasoning in Gillette, Purcell and Slimack that class certification is appropriate. Even though individual determinations as to damages will be necessitated (because of defaults, damage to premises, delinquent rents, and statute of limitations bars), the common issue of defendants’ uniform statutory violation predominates. We are further persuaded of the legitimacy of this certification by the reasoning in McCarthy, which involved an almost identical factual situation, relied on the same case law and found certification of a tenant class appropriate. We do likewise.

Additionally, we disagree with the trial court’s conclusion that plaintiff had entered into an accord and satisfaction with defendents thereby precluding his standing as a class representative and justifying the denial of his individual claim. (According to the trial court, an accord and satisfaction was accomplished by plaintiff’s cashing the single check comprising his security deposit plus accrued interest which was received after he vacated the apartment.) In order to constitute an accord and satisfaction, the party asserting the defense must establish each of the following elements: (1) a bona fide dispute; (2) over an unliquidated sum; (3) consideration; (4) a shared and mutual intent to compromise the claim; and (5) execution of the agreement. (Hrubos v. Helfrick (1991), 220 Ill. App. 3d 787, 581 N.E.2d 180.) In the instant action, defendants failed to prove that a bona fide dispute existed over the amount to which plaintiff was entitled at the time he cashed Vanguard’s check for $711.50, which was paid pursuant to “move-out provisions” and which represented the return of plaintiff’s security deposit, plus accrued interest, less cleaning charges. Although plaintiff admittedly “strenuously objected” to the amount of the check, such objections were due to the deductions for cleaning and not for amounts owed due to defendants’ failure to pay annual security deposit interest. Indeed, at the time of cashing the check at issue, the record establishes that the plaintiff was totally unaware that he was entitled to such interest and damages. Consequently, he could not have intended to compromise a claim which he did not know existed. Furthermore, there was no language in the check indicating that cashing it would extinguish defendants’ responsibility to pay damages due to their failure to pay annual security deposit interest. Thus the case is distinguishable from Schultheis v. McWilliams Electric Co. (1991), 219 Ill. App. 3d 571, 579 N.E.2d 137, and Quaintance Associates, Inc. v. P L M, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567, where the relevant documents expressly referred to paying or settling claims. Instead it is more similar to the recent appellate court decision in Solomon, Helfand & Bean v. American National Bank & Trust Co. (1993), 243 Ill. App. 3d 132, where we found that even if the check under consideration operated as an accord and satisfaction of a claim to the security deposit refund, it did not operate to preclude the statutory claim that defendant failed to provide the refund within the time specified in the ordinance. Furthermore, the sum at issue is not unliquidated as the claimed amounts can easily be calculated using statutory formulas. For the aforementioned reasons, defendants have failed to establish all elements of an accord and satisfaction. Accordingly, we find that none existed and on this basis reverse the trial court’s denial of plaintiff’s individual claim as well as its determination that he lacked standing to represent the class.

Reversed and remanded for further action consistent with the views expressed herein.

Reversed and remanded.

MURRAY and COUSINS, JJ., concur.

      The trial court had found class certification to be appropriate.