author: JUSTICE SCARIANO

text:
    CATHERINE ASHLEY, Adm’r of the Estate of Sonya Ann Curtis, Deceased, Plaintiff, v. EVANGELICAL HOSPITALS CORPORATION, d/b/a Woodlawn Hospital et al., Defendants (Evangelical Hospitals Corporation, d/b/a Woodlawn Hospital, Third-Party Plaintiff-Appellee; Fernando Caburnay et al., Third-Party Defendants-Appellants).
    First District (2nd Division)
    Nos. 1—90—3432, 1—90—3556 cons.
    Opinion filed May 26,1992.

      Lord, Bissell & Brook, of Chicago (Robert B. Austin, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellant Fernando Caburnay.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago (George E. Riseborough and Leslie A. Peterson, of counsel), for appellant David Kintanar.
    Cassiday, Schade & Gloor, of Chicago (Timothy J. Ashe, Lynn D. Dowd, and Dale A. Diamond, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

We permitted these consolidated appeals to be taken from the interlocutory orders of the circuit court (134 Ill. 2d R. 308) which denied Dr. Fernando Caburnay’s motion for summary judgment and Dr. David Kintanar’s motion to dismiss a third-party indemnity action filed against both doctors by Woodlawn Hospital (Woodlawn) in connection with an underlying medical malpractice case filed against Woodlawn by plaintiff. With respect to the action brought against Dr. Caburnay, the circuit court certified the following question for our consideration:

“Is the Third-Party Action for Implied Indemnity filed by Third-Party Plaintiff Woodlawn Hospital against Third-Party Defendants in February, 1987, to recover any damages Woodlawn might be obligated to pay as the purported principal or employer of Dr. Caburnay in the underlying medical malpractice action barred by the four-year repose period of section 13 — 212 where the medical care at issue was rendered on or before December 5,1977?”

In the case against Dr. Kintanar, the circuit court certified the following issue:

“Whether a third party action for indemnity brought against a physician is subject to the repose period set forth in III. Rev. Stat., ch. 110, par. 13 — 212 [sic], and accordingly barred, when the medical care at issue in the underlying action was rendered more than nine years prior to the filing of the Third-Party Complaint for indemnity.”

On December 5, 1977, Sonya Ann Curtis died while undergoing surgery at Woodlawn. In 1978, the administrator of Curtis’ estate, Catherine Ashley, filed a wrongful death action against Dr. Caburnay and two other doctors, predicated on medical malpractice, and against Woodlawn, based on vicarious liability. Specifically, Ashley alleged that Dr. Caburnay, an anesthesiologist, negligently inserted an endotracheal tube into Curtis’ esophagus instead of her trachea, thereby causing her death. She further alleged that Woodlawn, through its agents, was responsible for regulating and supervising the anesthesia services rendered by Dr. Caburnay to its patients, and that its failure to meet its duty of care with respect to Curtis caused her death. In 1981, Dr. Caburnay and the other doctors settled with the plaintiff; Woodlawn did not settle with her until February 1987. Upon settling with plaintiff, Woodlawn also filed a third-party action against Dr. Caburnay, based on implied indemnity, and against Dr. Kintanar, who was not named in the plaintiff’s underlying medical malpractice suit, based on his express contract of indemnity with Woodlawn.

The medical malpractice period of repose, in effect at the time the alleged negligence occurred, provides in part:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date as occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death ***.” (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.)

The original five-year period of repose, enacted in 1975, was shortened to four years in 1976. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 427.) “The four-year repose provision has been a part of the statute since that time[ ]” (Mega, 111 Ill. 2d at 427), and is now contained in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212).

Despite the harsh result imposed by the strictures of the statute of repose, the legislature and the supreme court have left no doubt as to how it is to be interpreted, for it was intended by the General Assembly to cut off liability regardless of the time of its accrual, and that design has been upheld by the Illinois Supreme Court. See Anderson v. Wagner (1979), 79 Ill. 2d 295, appeal dismissed sub nom. Woodward v. Burnham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.

IMPLIED INDEMNITY

Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, holds that the four-year medical malpractice period of repose applies to third-party claims for contribution. (See also Antunes v. Sookhakitch (1992), 146 Ill. 2d 477; Vogt v. Corbett (1990), 138 Ill. 2d 482.) The parties here disagree, however, as to whether the holding in Hayes extends to third-party actions for implied indemnity as well. We hold that the reasoning employed by our supreme court in Hayes supports the inclusion of a third-party action for implied indemnity within the scope of the period of repose for medical malpractice cases. See also Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47, 51, appeal denied (1991), 141 Ill. 2d 559 (in which the fifth district held that the rationale employed in Hayes embraces actions for implied indemnity as well as for contribution, because the basis of the indemnitor’s obligation rested on his liability in tort to the injured party); Pederson v. West (1990), 205 Ill. App. 3d 200 (where the court held, on the authority of Hayes, that the medical malpractice period of repose applied to actions for equitable apportionment).

Woodlawn asserts, on the basis of the holding in Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, that the five-year statute of limitations in section 13 — 205 (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 205) for “actions on unwritten contracts, expressed or implied, *** and all civil actions not otherwise provided for,” rather than the medical malpractice statute of repose, applies to actions for implied indemnity based on an underlying medical malpractice claim. Because an action for implied indemnity is a distinct cause of action, argues Woodlawn, it is not subject to the statute of limitations that pertains to the underlying claim. The five-year period in section 13 — 205, Woodlawn continues, recognizes that it may take years to ascertain which party is actively negligent before the passively negligent party can effectuate a settlement or is subjected to an adverse judgment, and it therefore provides a third-party plaintiff with sufficient time to perfect its indemnity action after its liability has been determined.

In Anixter, after the plaintiff sued the defendant for having been sold defective brass tubing, the defendant brought a third-party action for indemnity against the company which had supplied it with the tubing. “Although the relationship between [the parties] may have arisen as the result of a contract,” the court ruled that the limitations period for a claim based on an implied contract of indemnity is governed by the general five-year statute of limitations in section 13 — 205, rather than by the Uniform Commercial Code, because “an implied contract of indemnity action is not a contract action.” According to the court, “[e]xcept to establish the relationship between the parties, contract principles of law [were] not involved.” Anixter, 123 Ill. App. 3d at 953.

However, in light of Hayes, Anixter is not helpful on the issue of whether the statute of limitations as to implied indemnity actions is affected by the medical malpractice period of repose. In Hayes, the court, in finding that the phrase “action for damages” included third-party actions for contribution, rather than only direct actions by injured parties, focused on the contributor’s liability in tort to the injured party as the basis for his liability to other culpable parties. (Hayes, 136 Ill. 2d at 456-57.) There, the contribution plaintiffs argued that they were not seeking recovery of the damages sustained by the original plaintiff from the defendant, but rather, enforcement of an equitable duty to share liability among the parties responsible for the original plaintiff’s injury. (Hayes, 136 Ill. 2d at 456.) The court reasoned:

“We believe that the plaintiffs’ interpretation of the medical malpractice statute of repose unduly limits its scope and misapprehends the purpose behind its enactment. It is true, as the plaintiffs observe, that an action for contribution need not be predicated on the same theory of recovery as that asserted by plaintiff in the underlying action. [Citations.] Nevertheless, ‘the basis for a contributor’s obligation rests on his liability in tort to the injured party’ [citation], even if the plaintiff in the direct action did not assert the theory of liability on which the third-party action relies. The action for contribution apportions the damages among the parties responsible for the original plaintiff’s injury, and the contributor is obligated for the damages directly created by the contributor’s negligent actions. The third-party plaintiff, therefore, is seeking from the third-party defendant those damages proximately caused by the negligent acts of the third-party defendant which the third-party plaintiff may be obligated to pay in the underlying suit. This leads us to conclude that an action for contribution is an ‘action for damages’ under the medical malpractice statute of repose.” Hayes, 136 Ill. 2d at 456-57.

Similarly, Woodlawn, the third-party plaintiff (or indemnitee) here, is seeking from Dr. Caburnay, the third-party defendant (or indemnitor), those damages caused by him, which Woodlawn paid to the plaintiff in the underlying suit. See Bua, Third Party Practice in Illinois: Express & Implied Indemnity, 25 DePaul L. Rev. 287, 296 (1976) (“The indemnitee is liable to the injured party because of technicalities of legal doctrine or statute. The actual injury is a result of the act of the indemnitor”).

According to Woodlawn, contribution and indemnity are distinct causes of action. (Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 161, citing Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 254.) It argues that “[i]n indemnity, a passive or innocent party is discharged from all liability, whereas in a contribution action, liability is apportioned by degree of fault. *** Unlike contribution, indemnity involves a situation where an innocent party is found liable to the damaged party based upon its relationship with the responsible party. [Citation.] Contribution involves two or more defendants whose negligence contributed to the plaintiff’s injury ***.” (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, cert. denied sub nom. Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849.) Moreover, Woodlawn concludes, although a party can extinguish future liability in contribution cases by settling in good faith, a party remains exposed to future liability in indemnity cases even if it settles.

The difference between indemnity and contribution should not affect the application of the Hayes rationale to this case. The focus in Hayes on the third-party defendant’s liability in tort to the injured party is pertinent to indemnity as well as to contribution. “Both indemnity and contribution arise out of the same principle of restitution or unjust enrichment.” (American National Bank & Trust Co. v. Bransfield (1991), 216 Ill. App. 3d 494, 498, appeal allowed (1991), 142 Ill. 2d 651.) “The intent underlying the passage of the Contribution Act is to create a separate right of restitution in the party seeking contribution ***.” (Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 1023, aff’d (1986), 112 Ill. 2d 378, citing Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 193 (1980).) Similarly, implied indemnity is a contract implied in law as a restitutionary device arising from the legal obligation of the indemnitee to satisfy liability caused by actions of the indemnitor. (Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 28.) “ ‘Indemnity and contribution are mutually exclusive remedies for allocating a plaintiff’s damages among joint tortfeasors with liability to the plaintiff’ ” (Emphasis added.) (Kotecki v. Cyclops Welding Corp., 146 Ill. 2d at 161, quoting Frazer, 123 Ill. 2d at 254.) Although “[cjontribution is a sharing of the loss” and “[ijndemnity is a shifting of the loss[ ]” (2 S. Williston, Contracts §345, at 767 (3d ed. 1961)), “[njeither doctrine has any effect on the rights of the plaintiff.” (Appel & Michael, Contribution Among Joint Tortfeasors in Illinois: An Opportunity for Legislative and Judicial Cooperation, 10 Loy. U. Chi. L.J. 169, 170 (1979).) It is this liability to the injured party on which the court centered its reasoning in Hayes.

Woodlawn points out that according to the principles of indemnity law as explained by the court in Anixter and upon which it relies:

“Under Illinois law, a defendant entitled to bring an implied contract of indemnity action has a choice of filing a third-party complaint against a party who may be liable to indemnify him as a part of the original action (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 406(b)), or of waiting until the original action is over and filing a separate action for indemnity if he is found liable. In effect, Illinois law allows the third-party indemnity claim to be filed before it accrues, in order to promote settlement of all claims in one action. The third-party claim cannot be determined, however, before the underlying claim establishing liability and damages is determined. It follows that the cause of action for an implied contract of indemnity does not accrue until the defendant has a judgment entered against him or until he settles the claim made against him. Only at that point does the cause of action for an [implied contract of] indemnity accrue and the statute of limitations begin to run.” Anixter, 123 Ill. App. 3d at 953.

However, indemnity operates in much the same fashion as contribution. “[A] contribution claim may be asserted by a ‘separate action before or after payment’ *** where no suit is pending which was initiated by the injured party; however, when there is a pending action, the contribution claim should be asserted ‘by counterclaim or by third-party claim’ in that action. [Citation.]” (Emphasis in original.) (Laue v. Leifheit (1984), 105 Ill. 2d 191, 196; Ill. Rev. Stat. 1989, eh. 70, par. 305.) The plaintiffs in Hayes argued that they satisfied the rule in Laue requiring a third-party to assert a claim for contribution by counterclaim or third-party complaint during the pendency of the underlying action if one exists; and they also claimed that the rule in Laue governed all actions for contribution including actions based on the contributor’s medical malpractice. (Hayes, 136 Ill. 2d at 459-60.) However, the court held that “Laue only established a procedural requirement that actions for contribution must be filed during the pendency of the underlying direct action,” and rejected the argument “that all actions for contribution brought within the time an underlying suit is pending are timely filed.” (Hayes, 136 Ill. 2d at 460.) According to the court, “[t]he medical malpractice statute of repose, on the other hand, ‘is intended to terminate the possibility of liability after a period of time.’ ” Hayes, 136 Ill. 2d at 460, quoting Mega, 111 Ill. 2d at 422.

Similarly, as to the issue of accrual, although a contingent or inchoate right of contribution arises at the time of injury, it does not accrue until payment is made. (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 321.) The plaintiffs in Hayes argued that the “application of the repose period to actions for contribution effectively abolishes contribution actions in all cases where the underlying action is filed close to or on the last day of the four-year repose period”; yet, the argument failed to sway the court from its adherence to the perceived intent of the legislature in enacting the repose period. (Hayes, 136 Ill. 2d at 460-61.) Citing the General Assembly’s perception of “the medical malpractice insurance crisis as so grave that it limited to four years a patient’s right to bring an action against certain health-care providers for damages arising out of patient care,” the court in Hayes found “it difficult to believe that the General Assembly did not also intend to bar a culpable party’s claim for contribution if not filed within the same statutory four-year period allowed an innocent plaintiff.” (Hayes, 136 Ill. 2d at 461.) We believe that the same reasoning applies here as to the issue of indemnity.

Woodlawn further asserts that if the legislature wanted to include implied indemnity actions within the scope of the medical malpractice period of repose, it would have done so by using express language. Furthermore, according to Woodlawn, there must be a clear indication of legislative intent in order to disallow a cause of action based on a statute. (Stephens v. McBride (1983), 97 Ill. 2d 515.) In this case, the fact that the legislature removed the word “indemnity” from a prior version of the construction statute of repose, which is similar to the medical malpractice statute of repose, Woodlawn avers, indicates the intent to preserve rather than to bar such actions. (People v. Youngbey (1980), 82 Ill. 2d 556.) However, this is the same argument raised in Justice Calvo’s dissent in Hayes which was rejected by the majority (Hayes, 136 Ill. 2d at 479-80 (Calvo, J., dissenting)); we must therefore reject it here.

Finally, Woodlawn urges that we should not apply a statute of limitations to this case because none of the reasons for which statutes of limitations are enacted apply. We find the argument to be plainly meritless. “A statute of limitations is to be construed in light of its objectives and to fulfill the object for which it was enacted.” (Miller v. Tobin (1989), 186 Ill. App. 3d 175, 177.) The inclusion of third-party actions for indemnity within the ambit of the medical malpractice period of repose furthers the legislative intent behind that provision. The Hayes court found that intent in the legislature’s response to a medical malpractice insurance crisis — a response in the form of an enactment that would enable insurance companies to better predict future liability by reducing the extended exposure of physicians and hospitals to medical malpractice liability. (Hayes, 136 Ill. 2d at 457-58.) “Because a suit for contribution against the insured for damages arising out of patient care exposes insurance companies to the same liability as if the patient were to have brought a direct action against the insured, we believe that the term ‘or otherwise’ in the medical malpractice statute of repose includes actions for contribution against a physician for injuries arising out of patient care.” (Hayes, 136 Ill. 2d at 458.) Similarly, it cannot be gainsaid that a suit for indemnification exposes insurance companies to the same liability as if the patient had brought a direct action against the insured.

The supreme court’s response to the argument that the term “otherwise” in the statute of repose did not apply to contribution actions because the Contribution Act did not exist at the time the law" was enacted further illustrates the breadth of the holding in Hayes. The court found “that the term demonstrate^] the General Assembly’s desire at the time it originally enacted the statute to limit a physitian’s exposure to liability for damages for injury or death arising out of patient care under all theories of liability whether then existing or not.” Hayes, 136 Ill. 2d at 459.

Our holding also comports with the canon of statutory interpretation which exalts the specific over the general. “Where there are two statutory provisions, one of which is general ***, and the other is particular ***, the particular provision must prevail and must be treated as an exception to the general provision, especially where the particular provision is later in time of enactment.” (Bowes v. City of Chicago (1954), 3 Ill. 2d 175, 205, cert. denied (1954), 348 U.S. 857, 99 L. Ed. 675, 75 S. Ct. 81.) In LaSalle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, which involved a claim for contribution, the court reasoned that the construction statute of limitations in section 13 — 214(a) of the Code of Civil Procedure which governed actions for acts or omissions in construction based on “tort, contract or otherwise,” superseded the more general Contribution Act limitations provision, which governed contribution actions regardless of the type of activity from which the cause of action arose. (LaSalle, 177 Ill. App. 3d at 473; Ill. Rev. Stat. 1987, ch. 110, pars. 13 — 214, 13 — 204.) Similarly, in our view, the medical malpractice period of repose, as an integral part of the medical malpractice statute of limitations which applies specifically to actions arising out of patient care, controls over the statute of limitations for actions on unwritten contracts and all civil actions not otherwise provided for in actions for implied indemnity which arise out of patient care.

For these reasons, we conclude that the medical malpractice four-year period of repose bars Woodlawn’s implied indemnity claim against Dr. Caburnay and therefore we answer the circuit court’s certified question relating to Dr. Caburnay in the affirmative.

EXPRESS INDEMNITY

Dr. Kintanar contends that the medical malpractice period of repose applies also to the third-party action for express indemnity asserted against him by Woodlawn. The indemnity provision in Dr. Kintanar’s employment agreement with Woodlawn provides in relevant part:

“Anesthesiologist agrees to indemnify and hold the Hospital, its Officers, Directors and agents harmless from any and all damages, costs or expenses resulting from any failure in the Anesthesiologist’s performance of his duties hereunder.”

Woodlawn responds that its contract with Dr. Kintanar, which governs his administrative duties as head of the anesthesiology department, is “not a contract to perform medical services” and therefore “has nothing to do with section 13 — 212.” Accordingly, Woodlawn argues that the breach of Dr. Kintanar’s employment contract “did not arise out of patient care,” but rather, from his “failure to properly perform his administrative duties.” Because Woodlawn believes “Dr. Kintanar’s contract must be governed by the principles of contract law,” it asserts that the 10-year statute of limitations for actions on written contracts now found in section 13 — 206 of the Code of Civil Procedure (previously contained in Ill. Rev. Stat. 1977, ch. 83, par. 17) rather than the medical malpractice period of repose applies to its express indemnity claim. Dr. Kintanar replies that Woodlawn’s breach of contract claim against him is premised on the underlying medical malpractice claim and that the agreement “clearly involves supervision of medical services, whether rendered directly by [him] or indirectly through others under his supervision.”

“Ordinarily, the application of the statute of repose is a question of law ***.” (Cunningham v. Huffman (1992), 223 Ill. App. 3d 878, 886.) “The phrase ‘arising out of’ is broad and generally means ‘originating from,’ ‘growing out of,’ or ‘flowing from.’ [Citation.]” (Miller v. Tobin (1989), 186 Ill. App. 3d 175, 177.) “It is well settled that the construction of a contract is a pure question of law which a court must determine from the clear language of the documents[ ]” (Horton Industrial, Inc. v. Village of Moweaqua (1986), 142 Ill. App. 3d 730, 738), and therefore we may determine it on review independent of the trial court’s judgment. (Transcraft Corp. v. Anna Industrial Development Corp. (1991), 223 Ill. App. 3d 100, 103.) In construing a contract, “great weight is to be given to the principal, apparent purpose and intention of the parties at the time that they entered into the contract.” De Witt County Public Building Comm’n v. County of De Witt (1984), 128 Ill. App. 3d 11, 18.

Pursuant to his employment agreement with Woodlawn, in which he was referred to as “Anesthesiologist,” Dr. Kintanar assumed the position of director of the department of anesthesia services. The responsibilities of the position included but were not limited to: (1) the “complete planning, directing, supervision and accountability for the activities of the Department of Anesthesia Services”; (2) the “availability and proper operating condition of equipment necessary to administer anesthesia and resuscitative efforts”; (3) the development of written guidelines and procedures concerning anesthesia safety; (4) participation in continuing education programs for the professional staff and employees; (5) the “directing [of] *** nurse anesthetists *** and insuring of their competence” to induce and maintain anesthesia and manage untoward reactions; (6) the development of written policies, procedures and budgets; (7) the development of policies delineating pre-anesthesia and post-anesthesia responsibility; (8) the development, implementation and documentation of a comprehensive continuing education program for the department; and (9) responsibility for the administration of IV fluids and blood derivatives by developing written policies and procedures, by acting as a liaison with the nursing service and assisting in cases of difficult phlebotamies and by evaluating new products and procedures. In addition, the agreement required the director to “guarantee[ ] the availability to the Hospital of all services of at least two qualified Anesthesiologists during such times as the Hospital determines this to be required.” The agreement further provided that Dr. Kintanar was to be at the hospital from 7 a.m. to 3 p.m. on Monday through Saturday, and at all other times upon notification by telephone or radio paging device.

In light of these provisions, we find, as a matter of law, that the agreement is instinct with the requirement that Dr. Kintanar perform medical services whether they be viewed as direct or indirect, administrative or supervisory; we do not read the contract as creating a firewall between his administrative or supervisory responsibilities over the medical care rendered in the department of anesthesia services and the medical care itself. We further note that Woodlawn’s third-party complaint acknowledges, in the count asserting its express indemnity claim, that it could be found liable because of “the acts of Dr. Fernando Caburnay which acts were not properly supervised by Dr. David Kintanar pursuant to the Agreement incorporated herein as Exhibit ‘C’.” Moreover, the context in which Woodlawn’s claim for indemnity arose and the premise upon which it is based are of no little significance here. Woodlawn’s claim for indemnity from Dr. Kintanar is inextricably linked to the underlying medical malpractice claim asserted against it by the plaintiff. As illustrated by the language of the certified question itself, it is not disputed that the underlying claim arose out of medical care. Accordingly, we are led irresistibly to the conclusion that Woodlawn’s third-party claim for express indemnity against Dr. Kintanar arose out of patient care.

In Roberson v. Belleville Anesthesia Associates, Ltd. (1991), 213 Ill. App. 3d 47, appeal denied (1991), 141 Ill. 2d 559, it was held, based on Hayes, that the medical malpractice period of repose applied to actions for implied indemnity because, “[a]s is the case with contribution, the basis of an indemnitor’s obligation rests on his liability in tort to the injured party.” Accordingly, the court found that “[a]n action for implied indemnity is just as much an ‘action for damages’ as is an action for contribution.” (Roberson, 213 Ill. App. 3d at 51.) However, the court in Roberson declined to apply the medical malpractice period of repose to a claim for express indemnity. The court reasoned:

“An action for express indemnity, which is based on a contract, is governed by section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 206). Actions for express indemnity are not affected by the Contribution Act. [Citations.]” Roberson, 213 Ill. App. 3d at 51.

That the promulgation of the Contribution Act resulted in the demise of implied indemnity based on active-passive negligence and did not affect actions based on express indemnity (Allison, 113 Ill. 2d 26) is not determinative of the issue of whether the medical malpractice period of repose or the statute of limitations for actions based on written contracts applies to an action for express contractual indemnity premised upon an underlying medical malpractice claim. As previously noted, in Hayes the court held that an action for contribution based on an underlying medical malpractice claim, although filed during the pendency of the underlying action as required by the Contribution Act, was barred by the medical malpractice statute of repose. (Hayes, 136 Ill. 2d 450.) However, it does not follow that the choice between the medical malpractice period of repose and the Contribution Act with respect to an action for contribution affects the choice between the medical malpractice period of repose and the statute of limitations relating to actions on written contracts with respect to an action for express contractual indemnity.

As we have indicated above, the medical malpractice period of repose covers actions for damages for injury or death against any physician or duly licensed hospital arising out of patient care “whether based upon tort, or breach of contract, or otherwise.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.) And, as we have seen, in Hayes, the court interpreted the phrase “action for damages” and the term “otherwise” to include third-party actions for contribution. (Hayes, 136 Ill. 2d at 456, 458.) Further, in interpreting the phrase “action for damages” the court rejected the plaintiff’s contention that the statute applied only to direct actions by an injured plaintiff. (Hayes, 136 Ill. 2d at 456-57.) Therefore, we respectfully decline to follow the fifth district’s decision in Roberson in so far as it holds that the repose period does not apply to third-party actions grounded on express contractual indemnity. Accordingly, we hold that a third-party action for express contractual indemnity, which arises out of patient care, falls squarely within the scope of the medical malpractice period of repose as an action for damages based on “contract.”

Furthermore, even in the totally improbable event that third-party actions for express contractual indemnity would not come within its “breach of contract” provision, we hold that a third-party action for express contractual indemnity, which arises out of patient care, is an action for damages which falls within the scope of the term “otherwise” in the medical malpractice statute of repose for many of the reasons discussed previously with respect to implied indemnity. In further support of this view we rely on the authority of Board of Library Directors v. Skidmore, Owings & Merrill (1991), 215 Ill. App. 3d 69, in which the court applied the construction statute of limitations in section 13 — 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 214(a)), which governs actions for acts or omissions relating to construction “based on tort, contract or otherwise,” to a claim for express contractual indemnity. In reaching its decision, which predated Hayes, the court in Skidmore relied on the authority of La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, which held that the construction statute of limitations in section 13 — 214(a) of the Code of Civil Procedure applied to actions for contribution, and Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, appeal denied (1987), 117 Ill. 2d 543, which held that the construction statute of repose in section 13 — 214(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 214(b)) applied to actions for contribution. (Skidmore, 215 Ill. App. 3d at 74.) In both of these cases, the courts relied on the term “otherwise” in reaching their decisions. (LaSalle, 177 Ill. App. 3d at 472; Hartford, 158 Ill. App. 3d at 518.) As with implied indemnity, we believe our decision with respect to express contractual indemnity gives effect to what the Hayes court referred to as the legislature’s perceived intent in enacting the medical malpractice period of repose.

For the foregoing reasons, we answer the circuit court’s certified question relating to Dr. Kintanar in the affirmative.

PROSPECTIVE APPLICATION

As a result of our holding in favor of the doctors, we must examine Woodlawn’s alternative argument that our interpretation of the period of repose be applied prospectively only. “However, the Illinois Supreme Court has consistently stated that it is within the inherent power of the highest court of this State to give a decision prospective or retroactive application. [Citations.]” (Emphasis added.) (Strang v. Department of Transportation (1990), 206 Ill. App. 3d 368, 373.) Therefore, we clearly do not have the authority to so limit the application of our decision. Strang, 206 Ill. App. 3d at 373.

For these reasons, we reverse the judgment of the circuit court with instructions to vacate the orders denying Dr. Caburnay’s motion for summary judgment and Dr. Kintanar’s motion to dismiss and to enter appropriate orders in favor of the doctors.

Reversed and remanded.

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

       Although it appears that Woodlawn may also have asserted a count for active-passive negligence against Dr. Kintanar, it states in its appellate brief that “[ujnlike with Dr. Caburnay, the Hospital’s theory of liability against Dr. Kintanar was for express contractual indemnity.” Because Woodlawn does not argue the issue of implied indemnity with respect to Dr. Kintanar, we do not consider it as to him. (134 Ill. 2d R. 341(eX7).) In any event, the same analysis of that issue would of course apply to either doctor.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE DANIELS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—3490
    Opinion filed May 26,1992.

      George M. Zuganelis, of Berwyn, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Clare T. McEnery, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

After a bench trial, defendant Tyrone Daniels was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)), and concealment of a homicidal death (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.1(a)); he was subsequently sentenced to concurrent terms of 60 years’ imprisonment for first degree murder, 20 years for armed robbery, and five years for concealment of a homicidal death. In this appeal, he contends that he was deprived of his right to effective assistance of counsel because his trial counsel (1) allegedly failed to effectively present his motion to suppress statements; (2) allegedly failed to effectively argue the applicable law regarding accountability; (3) successfully obtained the admission into evidence of the extrajudicial statement of Sheila Daniels, a codefendant; and (4) allegedly refused to permit him to testify at trial.

On November 4, 1988, after receiving reports of an abandoned car blocking an alley, police discovered the body of David Ray McCoy, lying face up with three gunshot wounds to the head, in the back seat of his car. Lying on the floor next to McCoy’s head, police found a .25 caliber semi-automatic Beretta, later determined to be the weapon which caused McCoy’s wounds. Following an investigation and attempts to trace the gun, police spoke with, and later arrested, Sheila Daniels, defendant’s sister. On November 18, 1988, shortly after speaking with Sheila, police arrested defendant.

Before trial, counsel for defendant filed several motions to suppress statements made by defendant after his arrest and to suppress evidence the police recovered in defendant’s apartment. In support of those motions, defendant alleged that the police had lacked probable cause to arrest him, that he was not advised of his constitutional rights at any time subsequent to his arrest, that his admissions were involuntary and the result of police coercion, and that Sheila had acted as an agent of the police.

During the hearing on the motions to quash the arrest and suppress evidence, defendant testified that, at approximately 3 a.m. on November 18, 1988, he was awakened by a knock at his door. When he asked who it was, the police identified themselves and told him to open the door and let them in. After defendant allowed the police entry, he was told to get up against the wall and to drop the blanket which he had wrapped about his naked body. While searching the apartment, the police told him to get dressed, giving him some of his clothes; they did not, however, provide him any underwear or socks. Although he was doing nothing illegal, defendant was then placed under arrest. At no time in the apartment did the police advise him of his constitutional rights.

Immediately after his arrest, defendant was taken to the police station, where he was questioned by the police. He was handcuffed tightly to the wall and was not allowed to go to the washroom. He initially told the police that he did not know anything about the death of McCoy. In response, the police told him that he “might as well tell everything *** because your sister is fixing to go to jail for a murder.” Shortly thereafter, one of the police officers punched him in his stomach and grabbed him by his hair, knocking his head into the wall. The police told him that if he did not cooperate his sister might get the death penalty. Sheila then entered the interrogation room and, after hugging defendant, told him loudly “to do whatever they say to do, we was [sic] gone [sic] go home and everything was gone [sic] be all right.” After Sheila left, defendant decided to cooperate with the police; however, he was still not advised of his constitutional rights.

Shortly thereafter, defendant was interviewed by an assistant State’s Attorney, who advised him of his rights. His statement to the assistant State’s Attorney, transcribed by a court reporter, was simply what the police told him to say. Further, he could not read or write and did not know that the consent form he signed meant that anything found in his apartment could be used against him in court.

Countering defendant’s motion to suppress, the State presented the testimony of Michael Cummings, the Chicago police detective assigned to investigate McCoy’s murder. He testified that the gun found near McCoy’s body was eventually traced to Sheila Daniels, who, when questioned by the police, told them that defendant had killed McCoy; later, she led the police to defendant’s apartment.

When the police arrived at defendant’s apartment, Cummings and several other officers knocked on defendant’s door and identified themselves. After defendant let the officers into his apartment, the police asked him his name and, when he answered, they placed him under arrest, advising him of his constitutional rights.

The officers then drove defendant to the police station, where they placed him in an interview room. Cummings again advised defendant of his rights and interviewed him for approximately 45 minutes. Defendant then asked to see his sister, who was brought into the room. Sheila Daniels “basically asked how [defendant] was doing. *** She said, just tell him the truth. She said, I told them what happened and just tell them what happened, tell them the truth.” Sheila then left the room and Cummings interviewed defendant again.

Thereafter, the assistant State’s Attorney spoke with defendant and advised him of his rights. Defendant said he understood those rights and agreed to give a statement to the State’s Attorney, which was subsequently transcribed. Defendant was not hit or struck or in any manner mistreated during his interrogation.

After hearing the testimony and the arguments of counsel, the court denied defendant’s motion, finding that the police had probable cause to arrest defendant and that defendant’s statements were not coerced by the police, but rather were voluntarily given.

After denial of defendant’s motion to suppress, trial commenced. During the trial, the court was presented with transcripts of testimony from several witnesses in Sheila Daniels’ jury trial. The testimony presented established that Sheila Daniels and her daughter lived with McCoy. Further, the testimony established that McCoy, who was a paraplegic since 1968, routinely carried a black .38 caliber handgun.

After the stipulations to the transcripts, Cummings gave essentially the same testimony that he had given in the suppression hearing. In addition, Cummings testified that, at 4 a.m. in the police station, after he had been advised of his rights, defendant initially denied involvement in McCoy’s murder. After being told that Sheila had “told [the police] that [defendant] was the one that did the murder on David Ray McCoy,” defendant gave the police a different version.

According to Cummings, defendant stated that Sheila Daniels shot McCoy in the back of his head while McCoy was seated in his car in his garage. Defendant then took the gun away from his sister and put it in his pocket. Next, defendant moved McCoy’s body to the back seat of the car, took McCoy’s gun, and then shot McCoy twice in the forehead with Sheila’s gun to “make sure that he was dead.” Thereafter, defendant drove McCoy’s car to an alley near McCoy’s place of business, with Sheila following in her own car. Defendant then wiped all fingerprints off Sheila’s gun and left it in the car by McCoy, locking all the doors of the car, which he left there. Defendant then emptied McCoy’s wallet of money and dumped it in a trash bin at a McDonald’s restaurant.

After giving his statement to Cummings, defendant spoke with Sheila in the interview room. Afterwards, defendant was interviewed by the assistant State’s Attorney and gave substantially the same version.

During cross-examination, Cummings acknowledged that there was nothing in his investigation which would indicate that defendant had knowledge of, or assisted in, Sheila’s plan to shoot McCoy.

The trial testimony of Anna Democopoulos, the assistant State’s Attorney who interviewed defendant, essentially corroborated Cummings’ testimony. In addition to what he had told Cummings, defendant told her that Sheila and McCoy had been arguing when Sheila accidentally shot McCoy. Defendant’s statement, taken by the court reporter and given to Democopoulos, was then entered into evidence over defense counsel’s continuing objection to the admission of defendant’s statements to the police.

The State lastly presented the testimony of Mitra Kalelkar, the medical examiner, who stated that she was unable to determine which bullet had been fired first, the one in the back of McCoy’s neck or the two in his forehead. Dr. Kalelkar stated, however, that if the bullet wound to the back of the neck was fired first, McCoy would have died instantly and, thus, would have been dead at the time the two gunshot wounds to his forehead were inflicted.

After the prosecution rested, the defense presented no witnesses; however, the defense did offer into evidence Sheila Daniels’ statement made to police.

Following closing arguments, the court found defendant guilty of first degree murder, armed robbery, and concealment of a homicidal death and later sentenced him to concurrent terms of 60 years’ imprisonment for first degree murder, 20 years for armed robbery, and five years for concealment of a homicidal death.

Defendant contends on appeal that he was deprived of effective assistance of trial counsel. Specifically, defendant contends that his trial counsel failed to effectively present his motion to suppress; failed to effectively argue the applicable law regarding accountability; successfully obtained the admission into evidence of the extrajudicial statement of Sheila Daniels; and refused to permit him to testify at trial.

The constitutionally guaranteed right of effective assistance of counsel has not been provided if defendant can prove that his counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings “were so serious as to deprive the defendant of a fair trial.” (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Defendant must thus establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) There is, however, a strong presumption that counsel’s performance falls "within the “wide range of reasonable professional assistance.” (Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; People v. Whittaker (1990), 199 Ill. App. 3d 621, 627, 557 N.E.2d 468.) Correspondingly, on review, the determination of the reasonableness of trial counsel’s actions must be evaluated from trial counsel’s perspective at the time of the alleged error, without hindsight, in light of the totality of the circumstances. Strickland v. Washington, 466 U.S. at 688-89, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; People v. Davidson (1990), 196 Ill. App. 3d 634, 638, 554 N.E.2d 444.

In the instant case, defendant maintains that he probably would not have been convicted had his attorney properly argued and presented his motion to suppress. Specifically, defendant asserts that his trial counsel erroneously presented a coercion and physical abuse theory during the suppression hearing, rather than the more “viable” theory that defendant was influenced or controlled by his older sister. Defendant maintains that had his attorney argued that his psychological state of mind was such that he would have done anything Sheila had told him to do, his motion to suppress his statement as involuntary would have been granted.

The record, however, does not support the contention that defendant was influenced to a great extent by his sister. Nowhere does the record indicate that defendant was somehow controlled or dominated by his sister or that he would abide by her wishes to his own detriment. Moreover, the record is devoid of any evidence demonstrating that defendant’s statement was involuntary due to his emotional condition. Rather, the only evidence presented that defendant acquiesced to his sister’s will was his statement that he took her advice to “tell the truth.”

Certainly, the failure to file or to present a viable motion to suppress could constitute ineffective assistance of counsel (see People v. Brinson (1980), 80 Ill. App. 3d 388, 399 N.E.2d 1010); however, in this case, trial counsel presented what amounted to the most viable basis to support the motion to suppress. Defendant’s present assertion that he was influenced and coerced by his sister is not borne out by the record. Further, defendant cannot liken his situation to that of the defendant in People v. Rhoads (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512, who was high on LSD during police questioning and suffering from emotional upset due to the unsettling news of his wife’s death. Consequently, we find that defendant was not deprived of effective assistance of trial counsel by his counsel’s failure to present the argument that defendant was psychologically influenced by his sister. See People v. Bourke (1992), 223 Ill. App. 3d 732, 585 N.E.2d 1325.

Defendant next contends that his trial counsel erroneously misapprehended the applicable law on accountability. Defendant maintains that his trial counsel made “outlandish” arguments to the effect that defendant could not have killed McCoy because Sheila’s gunshot had already killed him.

A person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the offense. Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c); People v. Foster (1990), 198 Ill. App. 3d 986, 556 N.E.2d 1214.

In arguing that his trial counsel misapprehended the accountability law, however, defendant distorts the record and fails to mention any of his trial counsel’s attempts to show that defendant in no manner participated in the planning or commission of the shooting of McCoy. Defense counsel specifically asked Detective Cummings whether there was “anything in any of Mr. Daniels’ statements that would lead you to believe that Tyrone Daniels did anything to aid, assist or participate with Sheila Daniels in any way until after Sheila Daniels had shot Mr. McCoy,” to which Cummings answered, “No.” Defense counsel pursued a similar line of questioning in cross-examining Democopoulos. Likewise, during closing argument, defense counsel argued that nothing in defendant’s statements indicated that he had any knowledge of Sheila’s intent to shoot McCoy or in any way “aided, assisted, abetted, or [was] otherwise involved in this.”

Clearly, defense counsel was aware of the applicable law concerning accountability and presented a defense based on that law, not on any “misapprehension” of it. Thus, defendant’s contention that his counsel did not provide adequate legal assistance in this regard must fail.

Defendant next argues that his counsel erred in successfully obtaining the admission of Sheila Daniel’s statement into evidence. Defendant argues that Sheila’s statement “figured prominently” in the court’s determination and thus, because that statement was “admitted solely due to defense counsel’s efforts[,] obviously defendant has been deprived of effective assistance of counsel.”

Again, the record does not support defendant’s assertion. Although Sheila’s statement is not contained in the record, the court’s and the attorneys’ allusions to that statement indicate that defense counsel attempted to use it to show that defendant was unaware that Sheila was going to shoot McCoy. Defense counsel’s use of Sheila’s statement was thus further support for counsel’s arguments that defendant was not accountable for Sheila’s actions.

Further, because we find that the decision to use Sheila’s statement was a matter of trial tactics, that decision has no bearing on the issue of competency of counsel. (People v. Whittaker, 199 Ill. App. 3d at 629.) Choices which are made on the basis of strategic considerations after a thorough investigation of all matters relevant to plausible options have traditionally been considered to be unchallengeable. (Strickland v. Washington, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) Accordingly, we find that defendant was not denied effective assistance of counsel due to his attorney successfully obtaining the admission of Sheila’s statement. See also People v. Watts (1992), 226 Ill. App. 3d 519.

Defendant lastly argues that defense counsel improperly refused to allow him to testify. Defendant acknowledges that the support for his contention is not contained in the record, but he raises the error “so as to present defendant’s ineffective assistance of counsel claim in it’s [sic] proper perspective,” promising to file a post-conviction petition raising this issue.

As the State properly asserts, this court is unable, based upon the record, to determine the merits of defendant’s claim. (See People v. Majer (1985), 131 Ill. App. 3d 80, 475 N.E.2d 269.) There is no question that a criminal defendant’s prerogative to testify at his own trial is a fundamental right; the question of the exercise of that right is thus not a matter of a strategic or tactical decision best left to trial counsel. (People v. Dredge (1986), 148 Ill. App. 3d 911, 913, 500 N.E.2d 445.) However, this court, presented as it is with a record containing no support for defendant’s assertion, must resolve the question against him. See People v. Majer, 131 Ill. App. 3d 80, 475 N.E.2d 269.

Based upon the foregoing, we find that, based upon defendant’s assertions of error, defendant was not denied effective assistance of trial counsel. The judgment of the circuit court of Cook County is thus affirmed.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

       After oral argument in this case, Justice McCormick recused himself. Justice Scariano has read the briefs, listened to the tapes of the oral arguments, and fully participated in the deliberations concerning disposition of this case.


text:
    ALBERT HENDERSON, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—91—1353
    Opinion filed May 26,1992.
    Legal Assistance Foundation of Chicago, of Chicago (David E. Haracz and James 0. Latturner, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Employment Security.

      Iris E. Sholder and Percival Harmon, both of Board of Education of City of Chicago, of Chicago, for appellee Board of Education of City of Chicago.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff Albert Henderson filed a complaint seeking administrative review of a decision of the Board of Review of the Department of Employment Security (Board) that he was ineligible to receive unemployment benefits because he voluntarily left his employment without good cause attributable to his employer. The circuit court affirmed the Board’s denial of plaintiff’s application for unemployment insurance benefits, and plaintiff appeals contesting the correctness of that decision.

A hearing on plaintiff’s appeal of the denial of benefits was held before a referee on February 2, 1990. Testimony revealed that plaintiff worked for the Board of Education of the City of Chicago for more than 14 years until he resigned, effective September 11, 1989. He was employed as a “factor” custodial worker until February 6, 1989, when he was demoted to the position of regular custodial worker. Plaintiff testified that this demotion was accompanied by a $9,000 to $10,000 decrease in pay per year, and pay was computed on an hourly basis rather than a salary.

After the demotion, plaintiff worked for two weeks. During that period, he earned $600 rather than his previous earnings for a two-week period of $1,000. Plaintiff testified that he did not work from February 6 until April 3, 1989, due to an injury. He then took a leave of absence from April 4 through July 2, 1989. On July 3, 1989, plaintiff returned to work at Washburne Trade School and remained until July 17, 1989. Plaintiff took vacation time and returned on August 4, 1989, when he informed his employer that he was resigning.

Plaintiff testified that a hearing was conducted prior to his demotion and he was told that he would be demoted for illegal entry and attempted theft of school property. Plaintiff admitted that he removed fluorescent lamps and toilet paper from Collins High School while he was assigned to Funston School, but claimed he took the supplies to use at Funston. He attended the hearing accompanied by a union representative, and he never filed a grievance requesting that the union attempt to reverse the demotion. Plaintiff testified that the union representative told him to wait for the outcome of the criminal charges arising from the incident. The criminal charges were subsequently dismissed. Plaintiff then obtained a grievance form, but the union representative told him that it would do no good. Further, plaintiff stated that when he turned in his resignation on August 4, he was told to think about this decision because many changes were occurring and many people were resigning. Thus, his resignation was not made effective until September 11, 1989.

The referee found that plaintiff voluntarily left work without good cause attributable to the employer. While the referee determined that the demotion substantially altered the terms and conditions of plaintiff’s employment, plaintiff “accepted the demotion both by his failure to file a grievance and by his remaining employed at this position for seven months after the demotion.” Thus, plaintiff was disqualified from receiving unemployment benefits. The decision was affirmed by the Board, which found that plaintiff was transferred after he was found removing property from a school which he had no authority to enter. The Board’s ruling was upheld on administrative review.

The Unemployment Insurance Act (Act) is to be liberally construed in order to protect individuals from severe economic insecurity resulting from involuntary unemployment. (Ill. Rev. Stat. 1989, ch. 48, par. 300; Lipman v. Board, of Review of the Department of Labor (1984), 123 Ill. App. 3d 176, 462 N.E.2d 798.) Further, the claimant bears the burden of establishing that he is eligible to receive unemployment benefits and must meet the terms and conditions set forth in the Act. Collier v. Department of Employment Security (1987), 157 Ill. App. 3d 988, 510 N.E.2d 623.

In the instant case, the Board found that plaintiff was ineligible to receive unemployment benefits based upon section 601(A) of the Act. This section provides in pertinent part:

“An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit ***.” (Ill. Rev. Stat. 1989, ch. 48, par. 431(A).)

“[G]ood cause for leaving may result from a substantial, unilateral change in the employment which renders the job unsuitable.” (Finik v. Department of Employment Security (1988), 171 Ill. App. 3d 125, 133, 524 N.E.2d 1148.) The existence of “good cause attributable to the employing unit” is generally a factual issue. (Pearson v. Board of Review of the Department of Employment Security (1990), 194 Ill. App. 3d 1064, 551 N.E.2d 1021.) Further, we note that the findings and conclusions of the Board on questions of fact are held as prima facie true and correct (Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879), and the duty of the reviewing court is to determine whether the findings and decision of the agency are against the manifest weight of the evidence. Sheff v. Board of Review (1984), 128 Ill. App. 3d 347, 470 N.E.2d 1044.

In the instant case, the Board found that plaintiff quit his job rather than accept a transfer to a different school at a different rate of pay after his employer caught plaintiff removing property from a school to which he was not assigned and had no authority to enter. Plaintiff testified that he entered Collins High School and removed fluorescent lamps and toilet paper while he was assigned to Funston School in order to replace supplies at Funston. In addition, plaintiff testified that he was charged with criminal trespass and attempted theft, but these charges were subsequently dismissed. This testimony reveals that the factual findings of the Board are not against the manifest weight of the evidence. Thus, we must now determine if the Board correctly applied the law to these findings.

Plaintiff contends that he left his employment for good cause attributable to his employer because he suffered a substantial reduction in wages. A reduction in pay may constitute “good cause” depending upon the surrounding circumstances. (Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 346 N.E.2d 399.) Further, plaintiff correctly notes that the focus is on the conduct of the employer, rather than the claimant. Pearson v. Board of Review of the Department of Employment Security (1990), 194 Ill. App. 3d 1064, 551 N.E.2d 1021.

We need not address whether the reduction in wages constituted “good cause.” In the instant case, plaintiff did not resign until seven months after the pay reduction and demotion went into effect. Further, plaintiff did not file a grievance or follow any procedure contesting the disciplinary action. Over the seven-month period, plaintiff used 6V2 months of leave and vacation time. In addition, there is nothing in the record that reveals any efforts on plaintiff’s part to resolve the situation with his employer. Plaintiff initially testified that he did not know he had a right to file a grievance, and later he testified that a union representative told him that filing a grievance would “probably” not be successful. But this did not relieve plaintiff of all responsibility to attempt to resolve the situation. An employee should make reasonable efforts to resolve employment conflicts. (Davis v. Board of Review of the Department of Labor (1984), 125 Ill. App. 3d 67, 465 N.E.2d 576.) Since plaintiff took no action, we find that he acquiesced, and when he left his employment seven months later, it was not due to good cause attributable to his employer. Our decision is not altered by plaintiff’s testimony that he delayed his resignation because an employer’s representative told him to think about his decision.

Thus, the judgment of the circuit court is affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: PRESIDING JUSTICE GREIMAN JUSTICE JIGANTI,

text:
    THEMIS ANAGNOST, Petitioner-Appellee, v. GEOFFREY R. LAYHE, Respondent-Appellant (Cook County Officers Electoral Board, Respondent).
    First District (3rd Division)
    No. 1—92—0581
    Opinion filed May 27,1992.

      JIGANTI, J., dissenting.
    Burton S. Odelson and Mathias W. Delort, of Odelson & Sterk, Ltd., of Evergreen Park, for appellant.
    Michael E. Lavelle, of Oak Park, for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

The petitioner, Themis Anagnost (Anagnost), is a licensed attorney over the age of 75 years who filed nomination papers in the Republican primary for the office of supreme court judge in the March 17, 1992, primary election. The respondent, Geoffrey R. Layhe (Objector), is a registered voter who filed objections to those nomination papers by reason of the Compulsory Retirement of Judges Act (Judges Act) requiring automatic retirement at the expiration of the term in which a judge attains the age of 75 (Ill. Rev. Stat. 1989, ch. 37, par. 23.71).

This provision is predicated on the authority granted in the Illinois Constitution that the General Assembly “may provide by law for the retirement of Judges and Associate Judges at a prescribed age.” Ill. Const. 1970, art. VI, §15(a).

The Cook County Officers Electoral Board sustained the objections, declared the Anagnost nomination papers invalid and determined that section 1 of the Judges Act imposes an age qualification for candidates seeking judicial office.

Thereafter the petitioner filed a petition for judicial review of the decision of the Cook County Officers Electoral Board, and on February 24, 1992, an order was entered by memorandum opinion reversing the decision of the Board and providing that the petitioner’s name appear on the Republican ballot in the March 17, 1992, primary election as a candidate for judge of the Illinois Supreme Court.

We must determine whether the Judges Act, which provides that a judge be “automatically retired at the expiration of the term in which the judge attains the age of 75” (Ill. Rev. Stat. 1989, ch. 37, par. 23.71), has been drafted with sufficient breadth to bar persons over 75 from running in partisan elections for judicial office.

Anagnost also asks us to make a threshold decision that the Constitution does not empower the General Assembly to prohibit individuals 75 or older from running for office, but rather applies only to the retirement of sitting judges.

We note that article VI, section 11, of the Constitution sets forth the qualifications for the office of judge. This section of the Constitution prescribes three of the qualifications for office: (i) citizenship; (ii) licensure as an attorney; and (iii) residency in the unit which selects the judge. Ill. Const. 1970, art. VI, §11.

There is ample authority that the legislature cannot add or change the qualifications of constitutional officers.

These qualifications, however, must be considered in light of article VI, section 15(a), which empowers the General Assembly to set “a prescribed age” for retirement of judges. Ill. Const. 1970, art. VI, § 15(a).

Constitutional provisions which govern a particular subject cannot be viewed in isolation. For example, in Thies v. State Board of Elections (1988), 124 Ill. 2d 317, 323, 529 N.E.2d 565, section 7(a), the constitutional provision for election of circuit court judges (Ill. Const. 1970, art. VI, §7(a)), and section 11, the provision for eligibility for judges (Ill. Const. 1970, art. VI, §11), were read together because both sections govern any statutes relating to the circuit courts. Similarly, in the present case, the provisions of the judicial article (section 11 as to qualifications and section 15(a) as to retirement) are not mutually exclusive, but rather must be read together as a rational plan for the regulation of this State’s judiciary.

However, generally, we will not address the constitutional issue if we are otherwise able to resolve the controversy and the language of the Judges Act allows us to do so without such resort. In re Application of County Collector (1989), 132 Ill. 2d 64, 73, 547 N.E.2d 107 (“[a] reviewing court will decide a constitutional question only where it is essential to disposition of the case”); Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316, 321, 243 N.E.2d 193 (“constitutional questions will not be considered if the cause can be determined on other grounds”); Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 9, 424 N.E.2d 1239 (a “court should avoid passing upon a constitutional issue if the case can be decided without doing so”).

The cutting edge of this decision, therefore, is the specific language of the Judges Act. The statute in its entirety is as follows:

“A judge is automatically retired at the expiration of the term in which the judge attains the age of 75. Such judge shall conclude all matters pending before him unless the Supreme Court makes other provisions for the disposition of such matters. This Section shall apply to all Supreme Court, appellate, circuit and associate judges.” Ill. Rev. Stat. 1989, ch. 37, par. 23.71.

The trial court suggests that the Illinois General Assembly considered the retirement of sitting judges on the one hand and the election of over-age judges on the other and determined that there was a significant difference between them based upon different dynamics of an adversarial election and a more passive retention process.

The trial court determined that the General Assembly made a rational choice and excluded candidates for judicial office over the mandatory retirement age of 75 from the operation of this Act.

There is some language in the legislative debates to support the proposition that there is a subtle difference between the partisan election of judges and the retention of judges. During floor debate, Representative John J. Cullerton, in support of this proposition, stated “since the public elects judges, they know or have the ability to find out what the age of a judge is, and so when they make that decision and elect that judge, that judge should be allowed to fill out his or her term, since that is what the people intended when they elected he or she [sic].” 85th Ill. Gen. Assem., House Proceedings, November 16, 1988, at 44 (statements of Representative Cullerton).

The language of the Judges Act leaves little room for an interpretation that it is applicable to any one other than sitting judges.

The Objector asks that we read the word “candidates” into the mandatory retirement provisions of section 1 of the Judges Act so that they will be treated in the same manner as sitting judges. Courts are not afforded that kind of interpretive luxury.

Wisely, our Constitution requires that “[a]ll elections shall be free and equal.” (Ill. Const. 1970, art. III, §3.) The 1970 Constitution retained this provision unchanged from the 1870 Constitution. (Ill. Const. 1870, art. II, §18.) The purpose of this provision is to insure people (1) access to the ballot (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 112, 281 N.E.2d 317 (“an election is free which gives every qualified voter the right to cast his vote without restraint”); Craig v. Peterson (1968), 39 Ill. 2d 191, 195, 233 N.E.2d 345, quoting People v. Deatherage (1948), 401 Ill. 25, 37, 81 N.E .2d 581 (this “ ‘constitutional guarantee gives to every qualified voter the free exercise of his right to cast his vote without suffering any restraint’ ”)); and (2) access to being on the ballot (People ex rel. Breckon v. Board of Election Commissioners (1906), 221 Ill. 9, 77 N.E .2d 321, but see People ex rel. Lindstrand v. Emmerson (1929), 333 Ill. 606, 165 N.E. 217; Williams v. Butler (1976), 35 Ill. App. 3d 532, 536, 341 N.E .2d 394 (“access to a place on the ballot is a substantial right not lightly to be denied”)). Moreover, the rights of candidates and the rights of voters cannot be neatly separated. Anderson v. Schneider (1977), 67 Ill. 2d 165, 365 N.E.2d 900.

Impairment of a citizen’s right to run for elective office should not be by inference even where an acceptable and appropriate legislative goal exists, but rather only by specific language barring access to the ballot and authorized in the Constitution. See Stout v. Black (1972), 8 Ill. App. 3d 167, 170, 289 N.E .2d 456 (reasonable limitations may be imposed by the legislature on the eligibility to participate in the electoral process without offending constitutional rights provided in the free and equal clause).

The General Assembly, therefore, has failed to enact appropriate legislation that would bar a person over the age of 75 and otherwise qualified to serve as a judge from running in a judicial election.

In its memorandum, the trial court wrestles with the validity and impact of age-based mandatory retirement. However, the United States Supreme Court recently determined that the judicial mandatory retirement provisions of the State of Missouri did not violate the equal protection clause of the Federal Constitution because the provision had a rational basis. (Gregory v. Ashcroft (1991), 501 U.S. 452, 115 L. Ed. 2d 410, 111 S. Ct. 2395.) Gregory affirms the proposition that age is not a suspect classification under the equal protection clause.

The niinois Compulsory Retirement of Judges Act has been similarly considered in Trafelet v. Thompson (7th Cir. 1979), 594 F.2d 623. This case addressed only the possible violation of the equal protection clause of the Federal Constitution and followed prior Federal cases which acknowledged the power of the State to compel judges to retire at a particular age. Vance v. Bradley (1979), 440 U.S. 93, 59 L. Ed. 2d 171, 99 S. Ct. 939; Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562.

The issue of mandatory retirement has probably not been totally put to rest in Illinois. This case, however, does not provide us with the kind of exhaustive record that would allow us to consider the issue of the constitutionality of the Illinois Compulsory Retirement of Judges Act. As technology changes, as means of evaluating judges’ performances become more exacting, as our life expectancies continue to rise, litigation over these matters will continue. Certainly, the legislature has shifted its position from time to time on the appropriate age of retirement. Two generations ago, 65 was considered the retirement age. The original Judges Retirement Act set 70 as the appropriate age and currently the age has been set at 75.

Mandatory retirement is a bitter experience for people who have been active and productive during their lifetime. The prolific artist Marc Chagall visited Chicago in 1974 and when asked why a man well past 80 continued to work so hard, Chagall replied, “If you do not work, you die.”

We affirm.

Affirmed.

CERDA, J., concurs.

JUSTICE JIGANTI,

dissenting:

Themis Anagnost is 78 years old and seeking to be a candidate for the Illinois Supreme Court. The Illinois Constitution empowers the legislature to “provide by law for the retirement of Judges and Associate Judges at a prescribed age.” (Ill. Const. 1970, art. VI, § 15(a).) The legislature has acted upon that empowerment and has provided that a judge will be “automatically retired at the expiration of the term in which the judge attains the age of 75.” (Ill. Rev. Stat. 1989, ch. 37, par. 23.71.) In holding that Anagnost may appear on the judicial ballot, the court interprets the statute as applying to sitting judges and not to judges seeking judicial office. (230 Ill. App. 3d at 544.) The only legal rationale given is that the legislature “failed to enact appropriate legislation that would bar a person over the age of 75 *** from running in a judicial election.” 230 Ill. App. 3d at 544.

The obverse of the majority’s rationale is that the legislature has the power to bar a candidate from seeking judicial office because of retirement age. With this I agree. I disagree with the majority when it very narrowly interprets the statute which states that a judge is “automatically retired” applies only to sitting judges. The holding effectively is that a judge may seek election while beyond retirement age but not retention. While there arguably may be a difference between seeking election and seeking retention, in this context of retirement there is no meaningful distinction. The statute should be interpreted as saying that no person shall seek a judicial office when beyond the retirement age. The holding that a judge beyond retirement age may seek election but not retention brings about an absurd result. The law presumes the legislature does not intend an absurd result. Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.

      The Illinois Supreme Court struck down a statute which changed the residency requirements stated in article VI, section 11, of the Illinois Constitution, reasoning that “where the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter.” (Thies v. State Board of Elections (1988), 124 Ill. 2d 317, 325, 529 N.E.2d 565.) Similarly, the supreme court held unconstitutional a statute which sought to prevent a sitting judge from retaining his existing judgeship while running for a different judicial office. (People ex rel. Nachman v. Carpentier (1964), 30 Ill. 2d 475, 197 N.E.2d 32.) The Nachman court observed that the “rule has become well established that where the office of judge is a constitutional one the General Assembly has no power to prescribe the manner of selection or election of the judge unless authorized by art. VI.” (Nachman, 30 Ill. 2d at 477, 197 N.E.2d 32.) The same rule obtained in People ex rel. Hoyne v. McCormick (1913), 261 Ill. 413, 103 N.E. 1053, where the court held unconstitutional a statute which required a five-year period of residency for Cook County commissioners, notwithstanding the constitutional qualification of a one-year residency requirement.

      The 1870 Constitution was amended in 1962, effective in 1964, with a new judicial article (Ill. Const. 1870, art. VI (1962 revision), §§15, 18) that provided sections 11 and 15(a) as they now appear in the 1970 Constitution (Ill. Const. 1970, art. VI, §§11, 15). In contemplation of the 1964 judicial article, the Judges Act was first passed in 1965 and later amended in 1981. Ill. Ann. Stat., ch. 37, par. 23.71, Historical and Statutory Notes, at 22 (Smith-Hurd 1990).


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY NEITHER et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—89—2602, 1—89—2603 cons.
    Opinion filed May 28,1992.

      Randolph N. Stone, Public Defender, of Chicago, and Greg Kostner and Dean P. Karlos, of counsel, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Roseanne McDonnell, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion to the court:

In this consolidated appeal, defendants Anthony Neither and Assad Muhammad challenge the lengthy sentences of imprisonment that the trial court imposed after they pleaded guilty to four robberies, two aggravated batteries, and possession of a stolen motor vehicle. They argue that their guilty pleas should be vacated because the trial court failed to give proper admonishments and committed other errors in imposing sentence. Defendant Muhammad also contends that his trial attorney provided him with ineffective assistance of counsel.

We affirm entry of conviction on the guilty pleas but reduce both defendants’ sentences from 71 years to 15 years.

Background

Over an 11-day period in March 1989 defendants committed a series of purse snatchings, two of which caused injuries to the elderly victims. They were arrested and charged with the robberies, plus two counts of aggravated battery and one count of possession of a stolen vehicle.

Defendants agreed to enter “blind” pleas of guilty, or pleas without negotiated sentencing considerations. The same lawyer represented both defendants. The trial court reviewed the factual bases of the pleas and admonished defendants of the rights they were waiving and apprised them of the minimum and maximum sentences available for the crimes. The court initially imposed prison terms of 79 years for each defendant, but later reduced the terms to 71 years. The court denied defense motions to vacate the pleas of guilty.

In the first criminal incident, an 81-year-old woman with a cane was walking in the parking lot of a shopping mall on March 10, 1989. Frances Pierres testified that a man (Muhammad) pulled her purse away, knocking her to the ground, and fled. She hurt her hip and knees in the fall but refused transportation to the hospital. Defendants admitted their involvement, saying that they were looking for people, the older the better, to steal from. Neither slid behind the wheel of the car while Muhammad approached the woman and grabbed her purse. Bonds stolen from her purse were later returned to her. The trial court imposed an extended term of 18 years for Class 1 robbery and an extended term of seven years for aggravated battery, to run concurrent with each other but consecutive to all other sentences.

The victim of the second robbery was a 57-year-old woman, Jeanne VanHeel, who was walking for exercise on March 13, 1989. When she heard running footsteps behind her, she moved to one side to let the person pass. Then she felt someone push her shoulder and grab for her purse. After a struggle, a man (Muhammad) got the purse and ran. VanHeel testified that she no longer takes walks because of her fear from the incident. Defendants admitted this offense. They said the purse contained no money and they discarded it. The court imposed a six-year term on Class 2 robbery, to run consecutive to all other sentences.

On March 20, 1989, 81-year-old Velma Pierson was walking to a church for a meeting when she heard running footsteps behind her. Before she could react her purse was taken by a man she later identified as Muhammad. She testified that her purse contained valuables and she did not get anything back. Defendants admitted to this offense and said they found $55 inside, which they split. The court imposed a 15-year, maximum unextended term for Class 1 robbery, to run consecutive to all others.

The fourth and worst robbery occurred on March 21, 1989, to Lola Mussen, who was 89 years old and who walked with the help of a cane. She was walking in Park Forest when a man (Muhammad) grabbed her purse. When she struggled, he punched her in the face, knocking her to the ground. Paramedics found her lying in a pool of blood. She sustained blackening and bruising around her eyes, and an examination revealed fractures in the bony structure around her eyes. Blood was coming out of her left ear, nose, and mouth. As a result of her injuries, she was hospitalized for eight days and underwent rehabilitation and nursing. Her granddaughter testified that Mussen became depressed and no longer drives her car, cooks, or cleans her house. For this, the court imposed a maximum, extended term of 30 years for Class 1 robbery and 10 years extended term for aggravated battery, to run consecutive to each other and to all others.

Defendant Neither was apprehended on March 29, 1989, driving a stolen automobile. After the two defendants were arrested they gave statements to the police, admitting the offenses. For possession of a stolen vehicle, the court imposed a three-year sentence, to run concurrent with the other sentences.

At the sentencing hearing the State offered in aggravation five additional misdemeanor purse-snatching offenses committed three months before, for which they had been sentenced to 21 days in prison. Officers testified that the two admitted their guilt and expressed no remorse. In mitigation, Neither presented the testimony of his mother and two neighbors. All three testified regarding Neither’s positive involvement with the children in the community and his help to his mother in caring for disabled twin children whom she has brought into the home. Family troubles were aggravated by Neither’s stepfather, who mistreated and beat him. The stepfather later separated from Neither’s mother, causing great financial difficulties, including the loss of their home.

For Muhammad, his mother and other witnesses testified in mitigation. Muhammad’s parents were divorced. Several witnesses expressed shock at the news of his arrest and said he was a quiet and gentle person.

The trial court stated that it would not consider the misdemeanor convictions in imposing sentence. The court then sentenced both defendants to 79 years. After a motion to vacate the pleas of guilty, which was denied, the court acknowledged error in imposing extended terms on the two aggravated battery convictions because they were not within the most serious class of offenses. The court therefore reduced the aggravated battery sentences to two years each, and reduced the total sentences to 71 years.

Opinion

Both defendants strongly challenge the sentences imposed as being grossly excessive. They also argue that their guilty pleas should have been vacated because the trial court improperly admonished them regarding possible sentences and also expressed prejudice that tainted the sentencing process. Because we agree that the sentences imposed must be reduced, we find it unnecessary to vacate the guilty pleas or consider the issue raised with respect to the sufficiency of the sentencing admonishments.

The image of the young and strong preying on the old and weak is abhorrent. The same act of robbery can have a measurably harsher impact on an elderly or handicapped victim than on a stronger and younger victim. The legislature, in fact, has enhanced robbery from a Class 2 felony to a Class 1 felony when the victim is 60 years old or over, or physically handicapped. (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1(b).) In the pending case, three of the four robbery victims were substantially over the age of 60, and two walked with the help of a cane. One was knocked down but refused medical treatment and one was seriously hurt from being struck in the face and left lying in her own blood. The robberies were carried out for defendants’ personal gain and with a callous lack of concern for the frailty of the victims. While the violence was incident to the goal of theft, Lola Mussen in particular was severely traumatized by the brutal force applied to her. Accordingly, the term “purse snatching” seems an almost light-hearted term for a crime that, in the case of elderly victims, can have a devastating impact on the rest of their lives.

Notwithstanding our repugnance toward the criminal acts committed in the pending case, we think it obvious that prison terms total-ling 71 years are excessive. Even in cases where a defendant is found guilty of deliberate murder, courts generally impose substantially lower terms. For example, in People v. Brown (1991), 222 Ill. App. 3d 703, 584 N.E.2d 355, appeal denied (1992), 144 Ill. 2d 636, the defendant lay in wait outside the building the victim was in and shot the victim five times in the head and chest as he was leaving. The defendant was sentenced to 40 years in prison. See also People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335, appeal denied (1991), 136 Ill. 2d 547, 567 N.E.2d 335 (40-year term for first degree murder of wife by infliction of multiple stab wounds); People v. Urioste (1990), 203 Ill. App. 3d 1062, 561 N.E.2d 471, appeal denied (1991), 136 Ill. 2d 553, 567 N.E.2d 340 (40 years for stabbing murder which guilty but mentally ill defendant committed as part of home invasion and attempted aggravated criminal sexual assault).

Although the trial court is vested with broad discretion in fashioning sentences, reviewing courts must also review sentences in a meaningful manner. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—4.3 (which provides that the Illinois Department of Corrections must compile and publish annually a statistical analysis of all prison terms imposed and sentences served, to be “made available to trial and appellate court judges for their use in imposing or reviewing sentences”).) The sentencing data are grouped by classification of crime and other criteria. According to the Illinois Department of Corrections 1988 Statistical Presentation (IDOC Report) that was published under this provision, during the six-year period from 1983 to 1988, Class 1 felonies carried average prison terms of slightly over six years. (See IDOC Report, Table 16, at 57.) The shortest sentences imposed were four years and the longest were 15 years. See also People v. Anderson (1985), 142 Ill. App. 3d 240, 488 N.E.2d 557 (reducing defendant’s sentence for residential burglary from 17 years to 6, even though extended term was based on the fact that the burglars crashed in on a 63-year-old blind woman and her 10-year-old son); People v. Milton (1989), 182 Ill. App. 3d 1082, 538 N.E.2d 1227, appeal denied (1989), 127 Ill. 2d 631, 545 N.E.2d 123 (reducing a 30-year prison term for burglary to 12 years because of defendant’s youth, lack of prior convictions, and the fact the victim was uninjured); People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859 (reducing 25-year term on Class X aggravated sexual assault to six-year mandatory minimum).

We conclude that the aggregate term of 71 years is excessive. Defendants are young men who did not have substantial criminal records. They did not carry guns or knives. Such extreme punishment is disproportionate to the offenses.

A minimum sentence would be inappropriate in this case, however, as defendants did commit four separate purse snatchings, one of which left a victim badly injured. We are especially concerned that the last victim was the subject of what could be viewed as an escalation of violence. That violence could have led to her death. The seriousness of this conduct deserves a substantial penalty. The minimum prison term for a Class 1 felony is four years, the maximum 15. We believe that the maximum sentence is justified by the aggravating factors of the harm to the victims and defendants’ repeated course of conduct. Although defendants were unarmed, they relied on their superior physical strength to overpower their victims, all women of advanced years. The crimes were predatory in nature, the planned result of picking victims least likely to put up a struggle.

Whether an extended term is proper, however, is another question. The offense of robbery is a Class 2 felony with a sentencing range of three to seven years. (Ill. Rev. Stat. 1987, ch. 38, pars. 18— 1(b), 1005 — 8—1(5).) When a robbery is committed against a victim aged 60 or over, however, the legislature determined that the crime should be upgraded to a Class 1 felony, which carries a range of 4 to 15 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1(b), 1005 — 8—1(4).) In this case, three of the convictions were for Class 1 robberies because of the ages of the victim. We have determined that the maximum sentence of 15 years is justified, in the case of Lola Mussen, because of the degree of harm inflicted, the need for deterrence, and the pattern of conduct that prevents our viewing each incident in isolation. These are proper aggravating factors under section 5 — 5— 3.2(a) of the Unified Code of Corrections. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(a).

To extend the sentence imposed on a Class 1 felony, up to 30 years, the trial court would be required to find the presence of such factors in aggravation as are listed in section 5 — 5—3.2(b), which include the age of the victim (under 12 or 60 or over), whether the victim is physically handicapped, and whether the offense is accompanied by “exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.2(b)(2), (b)(4).

The trial court apparently imposed extended sentences based on the fact that the age and reduced physical ability of the victims made the crimes exceptionally brutal and heinous. We do not agree, however, that the type of conduct here was indicative of a brutal desire to inflict gratuitous pain or to torture the victims. Instead, defendants exhibited a callous disregard for the victims whose age and weakened conditions made them attractive prey and, incidentally, created a greater likelihood of serious physical injury. The legislature undoubtedly took this into account in determining that the substantive offense of robbery is more serious if the victim is of advanced years or suffers a physical handicap (that might well be an age-related handicap).

In People v. Ferguson (1989), 132 Ill. 2d 86, 97, 547 N.E.2d 429, the Illinois Supreme Court ruled that if an offense is already enhanced based on the victim’s age, an additional penalty based on the victim’s age is improper, unless there is a clear legislative intent to accomplish that result. (See also People v. White (1986), 114 Ill. 2d 61, 66, 499 N.E.2d 467 (general fact that victim is under 13 years should not be considered in aggravation of sentencing when offense charged is aggravated battery of a child, since age of child is necessary element of the aggravated battery); People v. Embry (1989), 179 Ill. App. 3d 1059, 535 N.E.2d 87 (defendant’s 24-year sentence for aggravated criminal sexual assault vacated because the trial court had considered the elderly victim’s age, a substantive element of the Class X offense, as an aggravating factor in the sentencing determination).) Significantly, the Embry court held that the sentence was improper even though it was within the 30-year range permissible for Class X offenses, because the age factor had already enhanced the severity of the sexual assault from a Class 1 to a Class X crime.

We conclude that the trial court erred in imposing the maximum, extended term in the case of Mussen, to 30 years. Similarly, the 18-year extended term for Pierres’ robbery is improper. We therefore vacate the extended terms in those two cases.

The State nonetheless attempts to justify the extended terms as being appropriate because the older and more helpless and weak a victim is, the “greater the degree of heinousness.” We cannot agree. Extended terms based on extreme brutality and heinous actions focus on the defendant’s conduct. Other sections of the extended-term statute focus on the victim’s age or physical handicap. We have concluded that the victims’ ages and reduced ability to protect themselves were elements of the grade of offense. The degree of harm, which in part relates to their age and frailty, has also been considered in aggravation of sentencing within the unextended range. In this case, the substantive crimes of robbery would have carried a maximum of seven years if the victims were not over 60 years old. Since three of the victims were older, the sentencing range increased to a maximum of 15, more than double. Had no injury occurred at all, the mere fact that the victim was over 60 would not be a sufficient aggravating factor to impose the maximum 15-year term. In the case of Mussen, however, the maximum term is justified because of the degree of harm she sustained. (See, e.g., People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138 (degree of harm may be considered as an aggravating factor even when harm is implicit in the offense).) Harm is potential in the crime of robbery, which requires a taking of property belonging to another by force or threat of imminent use of force. Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1(a).

We do not find that this case falls into the category of exceptionally brutal or heinous conduct, so as to warrant an extended term. In a recent case involving a cruel and terrifying sexual assault, the reviewing court upheld the 20-year term, which was within the 30-year, unextended maximum sentence possible for the Class X offense. (People v. Coleman (1991), 222 Ill. App. 3d 614, 584 N.E.2d 330, appeal denied (1992), 144 Ill. 2d 637.) In that case the victim was held down by two men while one pulled off her necklace and tried to choke her. He ripped her earrings out of her earlobes, tearing them. He and his codefendant threw her in the trunk of their car, smashing the lid down on her hand and locking her inside. Then they drove to a lagoon, let her out of the trunk and one defendant held a metal object to her head while the other forced his penis into her mouth. They threw her into the lagoon when they heard someone coming.

Even where extended terms are justified, the sentences have not approached the length of the ones imposed in this case. In a case in which three men murdered a mentally handicapped man in order to rob him, the court imposed a 50-year, extended term because of the brutality and heinousness of the crime. (People v. Hubbard (1991), 222 Ill. App. 3d 605, 584 N.E.2d 285.) One hit him hard in the face with a bottle, another stabbed him in the back with an eight-inch butcher knife, and the other went through his pockets and recovered $10.

In the pending case, defendants did not surround and murder their victims to rob them. Instead, one stayed in the car while the other ran up from behind and grabbed the purses. Defendants did not carry weapons. Their criminal history did not include any previous felonies. Their crimes were committed over an 11-day period before they were caught. While the trial court may have been concerned that their serial purse snatching was becoming a way of life, defendants’ potential for rehabilitation should not be lightly cast aside. Therefore, we do not believe that the sentences imposed for each separate offense should run consecutively in this case. (But of. People v. Fritz (1992), 255 Ill. App. 3d 624, 588 N.E.2d 307 (upholding trial court’s imposition of three, consecutive terms of five years plus four concurrent terms of five years for seven different thefts over two-year-period).) The stacking of maximum, extended terms on top of each other creates an almost impossible barrier to any chance for these young men to return to a productive life. Under the Illinois Constitution, “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, §11.

For the reasons set forth herein, we affirm the convictions based on the guilty pleas, but modify the sentences as follows: We vacate the extended term imposed in the Mussen case and reduce the sentence from 30 to 15 years. We further vacate the extended-term imposed in the Pierres case and reduce the 18-year sentence to 10 years. The other two robberies did not involve physical injury. The sentence for the Class 1 robbery committed against Pierson will be reduced from 15 years to 6 years. We reduce the six-year sentence in the VanHeel (Class 2) robbery to four years, and we affirm the three-year sentence for the possession of a stolen motor vehicle. All sentences are to run concurrently.

Affirmed as modified.

JIGANTI, P.J., and JOHNSON, J., concur.