author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM ALVELO, Defendant-Appellant.
    First District (6th Division)
    No. 1-89-0240
    Opinion filed July 13, 1990.

      Mitchell D. Kreiter & Associates, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Stanislaus Gonsalves, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a bench trial, the defendant, William Alvelo, was found not guilty of possession of cocaine with intent to deliver but guilty of possession and sentenced to 30 months’ probation and a fine. He was arrested after being stopped by the police while he was driving a car with a passenger. The police recovered cocaine from the passenger.

The defendant first contends that the court erred in denying his motion to dismiss the indictment on the ground that he was not timely tried. The defendant was arrested on October 14, 1986. On February 19, 1987, he appeared in court for a scheduled preliminary hearing; the court denied the State’s motion for a continuance, which the State sought because the laboratory analysis of the alleged cocaine was not available. The State then moved for an order of nolle prosequi and the court granted the motion. The defendant demanded trial. The police laboratory performed an analysis eight days later on February 27, 1987, and identified the substance as cocaine. On August 31, 1987, roughly IOV2 months after the arrest and six months after the nolle prosequi order and trial demand, the grand jury returned an indictment against the defendant for the same offenses for which he had been charged earlier.

The precise issue in this case was decided adversely to the defendant’s position in People v. Daniels (1989), 190 Ill. App. 3d 224, 546 N.E.2d 645. In Daniels, the defendant appeared f or a preliminary hearing; the court denied the State’s motion for continuance to await a laboratory analysis of the alleged controlled substance; the State obtained a nolle prosequi order. The laboratory analysis was completed three weeks later, but a new indictment was not returned until 53/2 months after the nolle prosequi order. This court reversed the dismissal of that indictment, concluding that the State’s use of a motion for a nolle prosequi order, rather than a motion to strike with leave to reinstate, and the subsequent indictment did not violate the defendant’s right to a speedy trial. (190 Ill. App. 3d at 226-27.) We conclude, therefore, that the judge did not err in denying the defendant’s motion to dismiss the indictment.

The defendant next argues that the trial judge erred in denying the defendant’s motion for a finding of not guilty at the close of the State’s case; he contends that the State failed to prove a sufficient connection between the defendant and the seized cocaine or a sufficient chain of possession of the cocaine.

Officer Ned Hladczuk, a Chicago police officer for 20 years, had made hundreds of drug arrests involving cocaine. At approximately 11:15 p.m. on October 15, 1986, he and Officers Sherman and Depke were in uniform and assigned to a gang-crimes unit. They were on car patrol in the area of Potomac Street and Pulaski Road. Hladczuk was driving. He saw a gray Mazda automobile being driven without a license plate; he did not notice any license-applied-for sticker in the rear window of the car. Hladczuk shined his head lamps on the Mazda to get a clearer view of the car. He then curbed the Mazda, which stopped within half a block at 4130 West Potomac Street. He had followed the Mazda for approximately one minute.

Hladczuk stopped his car behind the Mazda, got out and approached the driver’s side. The area was illuminated by streetlights, which were shining into the Mazda; also, the Mazda’s headlights and interior dashboard lights were on. Hladczuk did not use his flashlight as he approached. He saw two people in the car, a male driver whom he identified in court as the defendant and a female passenger, identified at the scene as Margie Rivera.

Hladczuk testified that he quickly walked to the driver’s door and saw the defendant remove a clear plastic packet containing white powder from his pocket and pass it to the passenger. Hladczuk had approached the car “pretty fast” and had seen the defendant pass the packet to the passenger “[ljike he just didn’t see me.” The passenger put the plastic bag in the waistband of her pants.

Hladczuk asked the defendant for his license; after the defendant indicated that he did not have one, Hladzcuk ordered the defendant out of the car. The defendant got out on the driver’s side with Hladczuk, and the passenger got out on the other side with Hladczuk’s partners. The passenger talked with the other officers and then reached into her waistband, pulled out a plastic packet and gave it to the officers; the packet contained a substance which the officers suspected to be cocaine. Hladczuk said that the packet was the same one that he had seen the defendant pass to the passenger. She was not searched, nor was she arrested. After the passenger turned over the plastic packet, Hladczuk searched the defendant but found no contraband.

Hladczuk and his partner inventoried the plastic packet at the police station under inventory number 332-482. On cross-examination he described the packet as three one-gram clear plastic containers in one larger clear plastic bag that contained a total of 21/a grams of cocaine. On redirect examination he identified the inventory slip for the contraband obtained from the passenger, which indicated that only one plastic bag had been seized from the defendant. On further redirect examination he identified People’s exhibit No. 1 as the plastic packet he recovered; he described the inventory number assigned to it as a unique number assigned to that piece of evidence and to no other evidence inventoried by the Chicago police department. He testified further that nothing in his reports indicated that the contraband was in three, small bags contained in one larger bag and that he was mistaken when he had so testified on cross-examination.

By stipulation Arlene Kozyk, a forensic chemist for the Chicago police department, testified that on February 27, 1987, she received People’s exhibit No. 1 in a sealed envelope. She chemically tested the white powder contained in the exhibit and gave the opinion that the substance contained cocaine and weighed 2.45 grams. The stipulation included “the chain of custody as to People’s Exhibit No. 1.”

The defendant testified that on October 14, 1986, at approximately 11:15 p.m., he was driving his Mazda near 4100 West Potomac Street. The car did not have a license plate but did have a valid license-applied-for sticker in his name in the rear window. The headlights and dashboard lights were illuminated. He had just picked up his passenger, Margie Rivera, who lived around the block on Kamerling Street. While he was driving, the defendant noticed a vehicle following him and flashing a white light, like a headlight. The defendant proceeded because he was not sure whether the vehicle was a truck or something else. He then heard a voice say, “Pull over”; he suspected that the vehicle was a police car. After he pulled over and “immediately” got out of his car, he saw three police officers exiting a squad car which was parked 10 or 15 feet behind him. Officer Hladczuk asked the defendant to remain where he was and approached him, while the other officers went to the passenger side and asked Margie Rivera to get out; and she did. Hladczuk asked the defendant if he had a driver’s license; the defendant indicated that he did not have one because of tickets that he had received, but he did not have the tickets with him. He was not searched at that time. The other officers were questioning Rivera. She pulled State’s exhibit No. 1 from the mid-section of her pants, near the crotch. The defendant had not seen Rivera put the bag in her pants, had not seen it before she removed it, never had possession of it and never passed it to her. He did not have any cocaine in his possession on that night. The police arrested him, but Rivera was not arrested or taken to the station.

The defendant argues that Officer Hladczuk’s testimony must be rejected as a matter of law because, the defendant says, the officer’s testimony that the defendant would pass a bag of cocaine to his passenger, as the officer was standing outside the car window, is inherently unbelievable. The defendant also refers to the inconsistencies between Hladczuk’s testimony that he observed the defendant pass a clear plastic bag containing three smaller plastic bags to Rivera and his later testimony that he was mistaken and that only a single bag was involved.

There is no doubt that a packet of cocaine was recovered from Rivera and that the People’s exhibit No. 1 was that packet. The defendant himself identified that exhibit as the one that was recovered from Rivera. The chain of custody was clearly established. It appears to us that the main thrust of the defendant’s argument is that the State failed to establish that the packet recovered from Rivera was the packet which the defendant gave to her. We cannot accept that argument since there was only one packet recovered; Rivera took it from the very part of her clothing where Hladczuk saw her put it; and Hladczuk said that the packet recovered was the one that he had seen the defendant pass to Rivera.

Hladczuk’s credibility was for the trier of fact to weigh, and it is not the right of a reviewing court to substitute its judgment for the trial judge. (People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.) Any discrepancies between the testimony of Hladczuk affected the weight to be afforded his testimony and were questions of fact for the judge. (People v. Irpino (1984), 122 Ill. App. 3d 767, 461 N.E.2d 999.) We note that in our judgment it is the defendant’s testimony that is suspect. To accept the defendant’s testimony that the police ignored an obvious violation of the law by Rivera and charged an obviously innocent person strains our credulity beyond reasonable limits. The trial judge made the specific observation that he could not understand why a police officer would lie for no reason and say the defendant had the bag and passed it to Rivera. The judge said there would be no reason to fail to arrest the woman unless the officer was telling the truth as to what he had seen. We agree with the judge’s reasoning and finding.

The defendant’s last contention is that the trial judge abused his discretion by improperly considering a pending charge of possession of a controlled substance and sentencing the defendant to felony probation rather than to probation for first-time drug offenders under section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 561/2, par. 1410).

It is improper for a trial judge to consider mere charges or arrests. (People v. Garza (1984), 125 Ill. App. 3d 182, 465 N.E.2d 595.) At the sentencing hearing the State told the judge that the defendant had no prior convictions. Colloquy ensued between the defendant’s attorney, the judge and the prosecutor. After the judge noted that the presentence investigation report showed that the defendant had another case pending, the defendant’s attorney pointed out that under the law the defendant was presumed innocent of the charge, a one-gram possession charge pending before another judge. He reminded the court that at that point the defendant was innocent of that charge. The prosecutor told the judge that it would not be relying on the other case in aggravation but would still ask the judge to enter judgment on the conviction and to sentence the defendant to formal felony probation. The judge said, “I take into consideration that you don’t have any convictions.” The judge’s comments regarding the defendant’s other pending charge of possession were not definite indications that the trial judge considered that charge in imposing sentence. The record lacks any indication that the trial judge improperly considered the pending charge in imposing sentence; thus, the presumption arises that he did not consider the pending charge and thus the sentencing determination did not constitute an abuse of discretion. People v. Poll (1980), 81 Ill. 2d 286, 408 N.E.2d 212; People v. Garza (1984), 125 Ill. App. 3d 182, 465 N.E.2d 595.

For these reasons the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and RAKOWSKJ, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    HENRY PHILLIP GRUSS, Plaintiff-Appellant, v. ELLEN BEVERLEY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-89-0282
    Opinion filed July 13, 1990.

      William J. Jovan, of Chicago, for appellant.
    Mathewson, Hamblet & Casey, of Chicago (J. Joseph Little and Laura H. Morrill, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal of the section 2 — 1401 order of the trial court (111. Rev. Stat. 1987, ch. 110, par. 2 — 1401) vacating the default judgment previously entered in favor of the plaintiff and against the defendants.

The issue raised by the plaintiff is whether the trial court abused its discretion in granting defendant’s section 2 — 1401 petition to vacate judgment.

Plaintiff filed suit on March 23, 1988, as lessor against defendants as lessees, for damages for breach of a written lease. The verified complaint alleged that the defendants had failed to pay the last five months’ rent of the lease term. The defendants appeared by separate counsel and on April 25 filed a timely motion to dismiss the complaint. Plaintiff was given leave to respond to the motion. Response was filed on May 12. On July 1, plaintiff moved the court to set the cause for trial on a date certain. The court set the matter for pretrial conference on August 31.

Pursuant to notice, on August 31 plaintiff moved for leave to file an amendment to the complaint to clarify the plaintiff’s standing as the appropriate plaintiff to continue with suit to address matters raised in defendants’ motion to dismiss. On August 31 counsel for opposing parties appeared for the scheduled pretrial conference. The trial court denied defendant’s motion to dismiss, permitted plaintiff to file an amended complaint instanter, ordered an answer to be filed by September 28, and continued the pretrial to October 26.

Counsel for the defendants failed to appear at the continued pretrial conference on October 26. No answer to the complaint had been filed as ordered by the court. On October 26 the court entered an order of default on both defendants and set prove up for November 18.

On November 18 neither defendants nor their respective counsel appeared at the prove up. The court entered judgment in favor of the plaintiff and against the defendants based on the verified complaint and on plaintiff’s sworn testimony at the prove up hearing.

The defendants on November 23 filed a motion to vacate the October 26 order of default with the clerk’s office and noticed the motion for hearing on December 5, 1988, ten days later. Plaintiff filed a response to the motion to vacate and attached to its pleading a copy of the November 18 judgment.

On December 5 the trial court granted the defendants leave to file a reply to plaintiff’s response by December 16 and set the motion to vacate default for hearing on December 28. Defendants did not file a reply to plaintiff’s response.

On December 27 the defendants filed an amended motion to vacate the November 18 default judgment. The amended motion was heard by the court the next day, on December 28. Counsel for plaintiff argued that the December 27 motion to vacate the November 18 judgment was brought more than 30 days after judgment and therefore was not timely filed and that it should be denied. The trial court stated it would treat the pending motion to vacate as a section 2— 1401 petition. The court vacated the judgment conditioned upon the filing by defendants of an answer to the complaint within seven days and their payment of $175 to plaintiff for witness and attorney fees. The plaintiff appealed.

Initially we note that section 2 — 1301 of the Illinois Code of Civil Procedure provides that

“[jjudgment by default may be entered for want of an appearance, or for failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought.
*** The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1301(d), (e).)

After the suit was filed and service of summons accomplished, appearances were timely filed by separate attorneys for the defendants. Defendants then filed a motion to strike and dismiss the complaint, and plaintiff responded to the motion.

The record discloses that before the court had ruled on defendants’ motion to dismiss and before any answer was filed or due, the plaintiff moved to set this cause for trial on a date certain. Instead of ruling on the motion to dismiss or setting a trial date, the court set the cause for pretrial conference on August 31. The record discloses that the defendants participated in the initial pretrial conference. On August 31, defendants’ motion to dismiss was denied, they were ordered to answer the complaint within 28 days and the pretrial conference was continued to October 26. The record discloses that August 31 was the last date prior to the December 5 post-judgment motion that the defendants appeared or were represented by counsel at scheduled court dates.

No answer was filed. The defendants did not appear personally or by counsel at the continued pretrial date on October 26. The court on October 26 entered an order of default on the defendants for failure to file an answer to the complaint. The cause was set for prove up on November 18. The court clearly had authority under the provisions of section 2 — 1301(e) (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1301(e)) to enter the order of default on October 26 for defendants’ failure to file an answer on or before September 28 as ordered by the court. The entry of the default order is not challenged on appeal.

The Illinois Code of Civil Procedure also provides:

“(a) Upon the entry of an order of default, the attorney for the moving party shall immediately give notice thereof to each party who has appeared, against whom the order was entered, or such party’s attorney of record. However, the failure of the attorney to give the notice does not impair the force, validity or effect of the order.
(b) The notice shall contain the title, number, court, date of entry, name of the judge, and state that the order was one of default. The notice may be given by postal card or in any manner provided by rules.” Ill. Rev. Stat. 1987, ch. 110, pars. 2— 1302(a), (b).

The defendants acknowledged that the clerk of the court sent them notice of the default order and that they received the notice. We note that, because each defendant was represented by separate counsel, the notice of default is presumed to have been sent to each of the defense attorneys. Although the defendants were represented by separate attorneys, defendants’ motions each time were joint motions filed by one or the other of the counsel appearing for defendants, indicating a shared responsibility for their representation.

From October 26 until November 18 the defendants clearly had ample time following notice of default from the court clerk to move to vacate the default. Having received notice of the default, counsel or the defendants themselves could have and should have checked the court file to determine whether any future court date had been set. Apparently no one checked the court file. They could have telephoned plaintiff’s counsel to learn of any new court dates. It appears they did nothing, since no defendant or defense counsel was present at the November 18 prove up when the trial court entered judgment for plaintiff in the sum of $6,250 and costs.

In considering the issue raised by this appeal, whether the trial court abused its discretion when the defendants’ amended motion to vacate default judgment was considered as a section 2 — 1401 motion and in granting the relief requested by vacating judgment, we look to the statutory requirements of section 2 — 1401. The pertinent provisions of the Illinois Code of Civil Procedure are:

“(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. ***
(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.
(c) The petition must be filed not later than 2 years after the entry of the order or judgment.” (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1401(a), (b), (c).)

The defendants’ attempt to vacate the November 18 judgment, filed on December 27, was timely filed within the required statutory two years if the pleading had complied with the requirements of section. 2 — 1401. However, the statute also requires that a section 2 — 1401 petition must be supported by affidavit or other appropriate showing as to matters not of record. We construe this language to mean an affidavit or other appropriate showing as to good cause grounds to vacate the judgment which do not appear in the record. Here the defendants filed an unverified amended motion to vacate the default judgment reciting that counsel’s nonappearance in court was due to improper docketing by one of the defense attorneys. The motion recites the subsequent entry of judgment against defendants on November 18 and summarily states that defendants have a meritorious defense. No factual allegations as to what that defense might be are made, no answer had been filed nor was a supporting affidavit attached to the pleading to provide any further information as to the defendants’ diligence in bringing the motion. No notice was given opposing counsel that a section 2 — 1401 petition would be presented. In fact, defense counsel did not present a section 2 — 1401 petition. The court sua sponte translated the amended motion to vacate the judgment into a section 2 — 1401 petition.

Here, each defendant had an attorney, neither of whom filed the requisite answer or appeared at the pretrial on October 26 or at the subsequent prove up on November 18. It was not until December 5, 1988, after the original motion to vacate had been filed, that the court was petitioned and granted leave for defendant McNamara’s attorney to replace defendant Beverley’s attorney and thereafter to represent both defendants. Defendant McNamara’s attorney, who prepared and filed both the motion and the amended motion, stated only that he had “improperly docketed” the case, resulting in his nonappearance.

No explanation was offered for the passage of time from the entry of the order of default on October 26 to the November 23 filing of the motion to vacate the order, which motion was noticed for hearing on December 5. Nor was any explanation offered for the time lapse between the entry of the judgment on November 18 until the amended motion to vacate default and judgment, filed on December 27 and noticed to be heard on December 28. We note that counsel for the defendants was present at the motion hearing on December 5, at which time he learned of the entry of the judgment on November 18. He also was advised of the judgment by plaintiff’s response to his motion which was filed on December 2. His knowledge was clearly within 30 days of the entry of the November 18 judgment, yet the amended motion to vacate the judgment was not filed by December 18. If defendants’ motion had been filed by December 18, the provisions of section 2 — 1301 would have permitted the court to vacate the judgment on such terms and conditions as it elected to impose. Instead, the attempt to vacate the judgment was made 10 days later at the continued hearing scheduled to dispose of the motion to vacate the order of default and was in an improper form under section 2 — 1401 to vacate a judgment more than 30 days after its entry.

We note also that at the December 28 hearing plaintiff’s counsel informed the court that the defendants themselves are attorneys. The trial judge stated on the record that defense counsel “blew deadlines [he had] no business blowing,” that he did not have an answer on file at the time of the December 28 hearing although the court had ordered an answer filed by September 28, that counsel had made no good-faith effort to address the question of diligence and that he had not given the court “a principled reason to vacate the judgment.” The trial judge further stated that “I don’t think the court has technically any jurisdiction to fool with this judgment on the basis of the pleadings before it ***.” The court then elected to proceed to consider defendants’ motion to vacate default judgment as a section 2 — 1401 proceeding, overruled plaintiff’s oral jurisdictional objection holding that it was not timely made, and vacated the November 18 judgment on the condition that defendants file an answer in seven days and pay $175 to plaintiff for witness and attorney fees for the prove up hearing. We agree that, on the pleadings before it, the court technically had no jurisdiction to alter the judgment.

A petition brought under section 2 — 1401 must set forth affirmative allegations of fact which establish the existence of (1) a • specified meritorious defense, (2) the exercise of due diligence in presenting the defense to the court in the underlying litigation and (3) diligence in bringing the section 2 — 1401 petition to vacate the judgment. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381.) The determination of whether or not to grant the section 2— 1401 petition is within the sound discretion of the court but is dependent on the facts before the court. The court’s determination on the petition will not be reversed absent an abuse of discretion. (Smith v. Airoom, 114 Ill. 2d at 221.) The court is required to consider whether the petition has alleged sufficient facts to support both statutory requirements of meritorious defense and diligence. Williams v. Pearson (1961), 23 Ill. 2d 357, 359, 177 N.E.2d 856; Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 470, 350 N.E.2d 97; People ex rel. Franks v. Franks (1970), 126 Ill. App. 2d 51, 55, 261 N.E.2d 502; Bartolini v. Popovitz (1969), 108 Ill. App. 2d 89, 94-95, 246 N.E.2d 834; Davis Furniture Co. v. Young (1968), 102 Ill. App. 2d 415, 419, 242 N.E.2d 457.

Proceedings brought under section 2 — 1401 are the same or substantially the same as prior section 72 of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) Mere conclusory allegations of diligence and meritorious defense are not sufficient. Here the motion to vacate the default and judgment was neither sworn nor supported by affidavit; nor did it contain any allegations of facts to demonstrate a meritorious defense or any factual basis to establish defendants’ diligence.

The interpretation of section 2 — 1401 has been considered many times by Hlinois reviewing courts, which hold that this remedy is not intended to relieve parties of the consequences of their own lack of diligence. A litigant is bound by the action, or failure to act, of his attorney, and this statutory remedy will not relieve the defendant of the consequences of such representation. Bartolini v. Pop ovitz, 108 Ill. App. 2d at 96; Kaput v. Hoey (1988), 124 Ill. 2d 370, 382, 530 N.E.2d 230.

Reviewing courts have reversed a trial court’s grant of section 2 — 1401 (section 72) relief where the pleading in which the relief is requested did not meet the statutory requirements. In Mutual National Bank v. Kedzierski (1968), 92 Ill. App. 2d 456, 460, 236 N.E.2d 336, the court found that counsel’s allegation that he “missed the case on the call” did not allege diligence, and that the motion failed to allege facts to support an argument that the litigant had a meritorious defense. The reviewing court reversed, finding that the trial court could not exercise its discretion if no facts were alleged.

In Solomon v. Arlington Park/Washington Park Race Track Corp. (1979), 78 Ill. App. 3d 389, 402, 396 N.E.2d 1118, the reviewing court found the trial court had abused its discretion where defendant had failed to show fraud, unconscionable behavior or unfair advantage on the part of the plaintiff.

In finding that the unverified petition also was unsupported by affidavits, the reviewing court in Okumura v. Nisei Bowlium, Inc. (1976), 43 Ill. App. 3d 753, 755, 357 N.E.2d 187, found that the documents were so defective that they could not support an order granting the requested relief, and in the absence of a proper pleading, the relief granted was unwarranted.

Where a section 2 — 1401 petition and supporting affidavit alleged a meritorious defense but did not allege supporting facts, the reviewing court reversed the trial court’s vacation of the judgment. People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 73, 482 N.E.2d 1114.

On appeal the trial court’s order vacating judgment on a section 72 petition was reversed where the reviewing court found that the mere conclusions of the pleader, which alleged no facts to support a defense and no facts to explain lack of diligence, were insufficient to enable the trial court to judge the merits of the petition. Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill. App. 3d 573, 579, 305 N.E.2d 25.

The appeals court in Davis Furniture v. Young (102 Ill. App. 2d at 418, 420) reversed the trial court’s grant of the section 72 petition, finding that allegations in the supporting affidavit contending the sales contract was altered or forged, that there was an illegal seizure of property, and that defendant was unable to hire an attorney from July to October were insufficient to support allegations of diligence and a meritorious defense.

In Norvell v. Howard (1979), 72 Ill. App. 3d 698, 702, 391 N.E.2d 101, defendant’s allegation of due diligence was found to be conclusory and facts alleged failed to show diligence. The court reversed, finding the trial court abused its discretion because there was no basis to grant the requested relief.

Where service on a dissolved corporation was made on the Secretary of State with notice to the last known corporate address and plaintiff received a phone call from an attorney in response who promised to appear but no further contact was made, judgment was entered. A section 72 petition filed 3V2 months later was granted by the trial court and judgment was vacated. On appeal the trial court’s order was reversed. The appellate court found there was no showing of diligence and no showing of any unfair or unconscionable conduct by the plaintiff and that the court had abused its discretion in vacating judgment. (Westphall v. Trailers, Campers, Campgrounds, Inc. (1979), 76 Ill. App. 3d 205, 209, 392 N.E.2d 741.) The court found there was no need to reach the question of the sufficiency of the meritorious defense allegations.

The defendant was found not to have set out sufficient facts in his petition to vacate default judgment to support an allegation of diligence in presenting his petition where he recited merely that he had retained a second attorney to “fully represent him in all matters with respect to the pending action.” (Bartolini v. Popovitz, 108 Ill. App. 2d at 96.) The court reversed the trial court, finding that section 72 did not relieve a defendant of the consequences of his own negligence and that he was bound by the actions, or failure to act, of his attorney.

In those cases where the trial court’s denial of the section 2— 1401 petition has been affirmed on appeal, the court has applied the tests of factual allegations of meritorious defense and diligence in presenting a defense both in the underlying litigation and in the post-judgment proceedings. Where the defendant has failed to establish these requisites, the denial of the petition has been affirmed. Kaput v. Hoey, 124 Ill. 2d at 385; Coronet Insurance Co. v. Booker (1987), 158 Ill. App. 3d 466, 470, 472, 511 N.E.2d 793; Smith v. Airoom, 114 Ill. 2d at 231. See also Trobiani v. Racienda (1968), 95 Ill. App. 2d 228, 235, 238 N.E.2d 177; City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 25-26, 479 N.E.2d 1040.

On appeal the reviewing court will not reverse the order of the trial court granting section 2 — 1401 relief vacating judgment absent a finding that the court has abused its discretion. Smith v. Airoom, 114 Ill. 2d at 221.

Upon an examination of the conduct of the parties in this case we conclude that the motion failed on the questions of sufficiency of the allegation of meritorious defense and diligence both before and after judgment. Here the insufficiency of the unsworn motion to vacate default and judgment to qualify as a section 2 — 1401 petition, the judge’s statement that defense counsel had failed to give the court a reason to vacate the judgment, the judge’s comment that he probably did not have jurisdiction to vacate the judgment on the pleadings before him when combined with the court’s knowledge that the defendants, as attorneys themselves, and their two separate counsels on their behalf had failed to answer the complaint, had failed to file a proper motion to vacate and had failed to follow the progress of the case all demonstrate an abuse of discretion by the court in granting section 2 — 1401 relief to the defendants.

Because the amended motion to vacate the judgment was not filed until a date more than 30 days after judgment was entered it does not qualify as a section 2 — 1301 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301) under which the court could have granted the defendants their relief at its discretion. Because the defendants’ amended motion to vacate the judgment is deficient as a petition under section 2 — 1401 for it's failure to show existence of a meritorious defense and for lack of diligence in presenting the defense petition to vacate the judgment, the December 28, 1988, order of the trial court which vacated the November 18 judgment must be reversed.

For all of the foregoing reasons, the order appealed from is reversed and the judgment of November 18, 1988, in favor of plaintiff is reinstated and affirmed.

Judgment reversed.

EGAN and RAKOWSKI, JJ., concur.


text:
    HALLMARK AND JOHNSON PROPERTIES, LTD., et al., Plaintiffs-Appellants, v. WESLEY TAYLOR, Defendant-Appellee.-WESLEY TAYLOR, Plaintiff-Appellee, v. HALLMARK AND JOHNSON PROPERTIES, LTD., Defendant-Appellant (Terrance W. Honan et al., Defendants).
    First District (6th Division)
    No. 1-89-2999
    Opinion filed July 13, 1990.
    Rehearing denied August 14, 1990.

      Saul R. Wexler, of Chicago, for appellants.
    Rieck & Grotty, P.C., of Chicago (Jerome E Grotty and Thomas M. Cannon, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs, Hallmark & Johnson Properties, Ltd. (Hallmark & Johnson), and Andreas Berggreen, doing business as Mutual Realty (Mutual Realty), brought this action in chancery against defendant, Wesley Taylor, seeking a declaration of their rights to earnest money deposited by Taylor pursuant to a contract for the purchase of certain real estate. Taylor filed a separate action at law which was consolidated with the plaintiffs’ chancery action. The circuit court granted summary judgment in favor of Taylor, finding that the real estate sales contract had been cancelled and that Taylor was entitled to the earnest money he had deposited under the contract. The trial court also awarded Taylor prejudgment interest. Hallmark & Johnson and Mutual Realty have appealed, contending that the court erred in entering summary judgment in favor of Taylor and in awarding prejudgment interest.

On February 5, 1985, Filip Rotheimer entered into two listing agreements with Hallmark & Johnson for the sale of two multi-unit buildings owned by him in Chicago, Illinois. The agreements provided, inter alia, that Rotheimer would pay a commission of 6% of the sales prices if Hallmark & Johnson produced a purchaser who was ready, willing, and able to buy the subject properties. The listing agreements provided further that:

“BROKER IS AUTHORIZED TO ACCEPT AN EARNEST MONEY DEPOSIT FROM PURCHASER. IF PURCHASER DEFAULTS AND SELLER DECLARES A FORFEITURE OF THE EARNEST MONEY, THE EARNEST MONEY SHALL BE APPLIED FIRST TO PAYMENT OF BROKER’S COMMISSION AND ANY EXPENSES INCURRED, AND THE BALANCE PAID TO SELLER.”

In early March 1985, an agent for Mutual Realty, in cooperation with an agent of Hallmark & Johnson, showed the properties to Taylor. On March 7, 1985, Taylor and Rotheimer executed an installment agreement for the sale of the properties under which Taylor was obligated to make a down payment of $100,000 and Rotheimer was to hold a mortgage in the amount of $480,000, based upon a 30-year amortization. Interest on the mortgage was set at 10% for three years, and at 12% for an additional three years, with the balance due in 1991. Paragraph five of the supplementary provisions to the real estate sales contract provided as follows:

“If this contract is terminated without Purchaser’s fault, the earnest money shall be returned to Purchaser, but if the termination is caused by Purchaser’s fault, then, at the option of Seller, and upon notice to Purchaser, the earnest money shall be forfeited and applied first to payment of broker’s commission and any expenses incurred, and the balance paid to Seller.”

Taylor tendered the sum of $30,000 as his earnest money deposit, which was to be held by Hallmark & Johnson in escrow for the benefit of both parties to the sales contract.

The original closing date of March 13, 1985, was postponed by mutual agreement due to a delay in processing the order for title commitment. When a title report was received showing numerous judgments against Taylor, the parties decided to proceed with a sale on articles of agreement and to place the properties into a land trust.

The closing was rescheduled for April 16, 1985. Although Rotheimer was ready, willing, and able to complete the sale, Taylor failed to appear at the closing because he had been arrested by Federal law enforcement authorities. Two days later, on April 18, 1985, Rotheimer’s attorney sent a letter to Taylor’s attorney, with copies to Honan and Rotheimer, which stated that his client declared a default in the performance of the contract and that he would exercise his rights under paragraph five of the supplementary provisions to the contract. Neither Taylor nor his attorney responded or objected to this declaration of default and forfeiture.

Rotheimer’s attorney also sent a letter on April 18, 1985, to Terrance Honan, the listing broker for Hallmark & Johnson, which stated that “Taylor was not a competent and qualified buyer” and that suit would be filed against Taylor. The letter indicated further that suit might be brought against the brokers and sales personnel if necessary and requested that the brokers waive or compromise their claims to commissions.

After April 24, 1985, Honan had no communications with Rotheimer in connection with the earnest money with the exception of one telephone call regarding the possibility of reimbursement for certain costs incurred by Rotheimer out of the earnest money.

On May 22, 1985, Honan sent a letter on behalf of Hallmark & Johnson to Rotheimer, Taylor, and their respective attorneys advising that “[they had] applied the earnest money deposit in part payment of the broker’s commission.” Hallmark & Johnson received no response or objection to this letter other than an inquiry by Rotheimer regarding his costs for the title report and survey.

Between June 10, 1985, and July 16, 1985, Hallmark & Johnson disbursed to the appropriate realtors and sales persons the earnest money deposited by Taylor. Seventeen months later, on December 9, 1986, an attorney acting on behalf of Taylor sent a letter to Hallmark & Johnson, its counsel, and Mutual Realty demanding return of the earnest money deposited by Taylor. This letter made reference to a cancellation of the real estate sales agreement executed by Rotheimer and Taylor. The purported cancellation agreement bore the date May 3, 1985, and stated that the parties agreed to cancel the real estate sales contract and provided further that the parties agreed that the earnest money was to be returned to Taylor, less $750 for title charges and attorney fees, $300 for survey, and $2,500 for lost rents incurred by Rotheimer.

Thereafter, Hallmark & Johnson filed its complaint in chancery for declaratory and other relief, and Taylor filed his complaint at law to which Rotheimer filed a counterclaim against Hallmark & Johnson and Honan. The actions were then consolidated in the chancery proceeding.

Rotheimer testified at his deposition that although Taylor’s financial statement was not satisfactory, he agreed to reschedule the closing date to April 16, 1985, and to proceed with the sale by installment agreement. Rotheimer stated further that he had not seen or communicated with Taylor since Taylor’s arrest in mid-April 1985. Although Rotheimer acknowledged his signature on the May 3, 1985, cancellation of the real estate sales contract, he did not recall when he signed it or whether Taylor’s signature already appeared on the document when he signed it. Rotheimer also testified that it was possible that the date on the cancellation was incorrect or that he had signed the document in blank. Exhibit 9 to Rotheimer’s deposition was a letter from Rotheimer’s attorney to Taylor’s counsel dated June 10, 1985. This letter indicated that Rotheimer had signed the cancellation of the contract in triplicate and requested that the documents be signed by Taylor and returned to Rotheimer’s attorney.

Taylor testified at his deposition that he did not know whether the cancellation was signed on May 3, 1986, or on June 10, 1985, but stated that his counsel had sent the document to the real estate brokers. Taylor could not recall how many requests he had made for the return of his earnest money or whether any demand letters had been sent. Taylor stated further that he had received a copy of the April 18, 1985, letter from Rotheimer’s attorney which declared a default and forfeiture of the contract. He also testified that he had received a copy of the May 22, 1985, letter from Honan which stated that pursuant to the declaration of forfeiture, the earnest money had been applied toward payment of the brokers’ commissions.

Honan testified at his deposition that he had no conversations with Taylor after his arrest, and his only communication with Rotheimer after April 24, 1985, involved reimbursement for the cost of the survey incurred by Rotheimer. He stated further that the commissions were paid to the appropriate brokers and sales people between June 10, 1985, and July 16, 1985. Honan also testified that Rotheimer and Taylor never advised him that the contract had been cancelled and that the first time he saw a copy of the purported cancellation agreement was after the litigation had been commenced in February 1987.

After a hearing on the parties’ cross-motions for summary judgment, the trial court entered judgment in favor of Taylor, finding that there was no question of material fact.that Rotheimer and Taylor had agreed to release each other from the contract and that Taylor was entitled to the return of the earnest money. The court also sua sponte granted Taylor leave to amend his complaint to add a claim for prejudgment interest. The court did not grant plaintiffs leave to amend their complaint to include allegations of equitable estoppel, and plaintiffs did not request leave to amend. After an additional hearing, the court awarded Taylor prejudgment interest and entered findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Hallmark & Johnson and Mutual Realty appeal.

Hallmark and Johnson and Mutual Realty assert on appeal that the trial court erred in finding that there was no genuine issue of material fact that Taylor was entitled to the return of the earnest money as a matter of law. We agree.

It is well established that a broker’s commission is earned once a ready, willing, and able buyer is produced. (Wilson v. Mason (1895), 158 Ill. 304, 42 N.E. 134; United Investors, Inc. v. Tsotsos (1985), 132 Ill. App. 3d 175, 178, 477 N.E.2d 40, 42.) Where a seller of real estate enters into an enforceable contract of sale with a purchaser procured by a broker, the readiness, willingness and ability of the purchaser is no longer open to question and the broker’s right to compensation accrues whether or not the sale is completed. United Investors, 132 Ill. App. 3d at 178, 477 N.E.2d at 42; Western Pride Builders, Inc. v. Zicha (1974), 23 Ill. App. 3d 770, 773, 320 N.E .2d 181, 184.

In the instant case, Rotheimer had agreed to hold the mortgage for Taylor, and the sale of the properties was not contingent upon Taylor’s ability to obtain financing. Absent competent evidence to the contrary, Hallmark & Johnson and Mutual Realty earned their commissions when they produced a ready, willing, and able buyer. This was accomplished when Rotheimer and Taylor executed the real estate sales contract on March 7, 1985, despite the fact that the sale was never completed. Two days after Taylor failed to appear at the second closing date, Rotheimer’s attorney sent a letter to Taylor’s attorney, with copies to his client and to Honan, which declared a forfeiture of the contract and stated that Rotheimer would exercise his rights under paragraph five of the supplementary provisions to the contract. Taylor did not respond to the declaration of default and forfeiture. Acting upon the declaration of default and forfeiture by Rotheimer, Hallmark & Johnson provided the parties with written notice on May 22, 1985, that the earnest money had been applied toward payment of the brokers’ commissions. Hallmark & Johnson received no response or objection to this letter, and the earnest money was actually disbursed to the appropriate brokers between June 10, 1985, and July 16, 1985. Based upon the information' available to it at the time, the conduct of Hallmark & Johnson was in accordance with the terms of the listing agreement and the real estate sales contract. Hallmark & Johnson was not advised that the contract had been can-celled until December 1986. As Hallmark & Johnson have argued before this court, if the earnest money had been returned to Taylor after April 18, 1985, they would have breached their fiduciary duty to Rotheimer. See United Investors, 132 Ill. App. 3d 175, 477 N.E.2d 40.

Although Taylor contends, and the trial court found, that the real estate sales contract had been cancelled, the evidence in the record indicates that this was a disputed question of fact. Both Rotheimer and Taylor testified that they had no further dealings with each other after Taylor’s arrest in mid-April 1985. Honan, the broker for Hallmark & Johnson, testified that he never received a copy of the purported cancellation agreement from Rotheimer or Taylor and first learned of its existence after this litigation had been commenced in February 1987. Honan received no response or objection to his letter of May 22, 1985, which advised the parties that the earnest money had been applied toward payment of the brokers’ commissions. It is logical to assume that if the contract had indeed been cancelled, either Taylor or Rotheimer would have notified the real estate brokers and would have challenged the right of the escrowee to disburse the earnest money as payment for commissions. Yet, the brokers were not advised of the cancellation of the contract and no challenge to the earnest money disbursement was made until December 9, 1986, approximately V-k years after the forfeiture and disbursement of the funds.

In addition, neither Rotheimer nor Taylor could actually recall when the cancellation had actually been signed, and Rotheimer indicated that he may have signed the document in blank. The document bears the date May 3, 1985, but the letter to Taylor’s attorney from Rotheimer’s attorney and dated June 10, 1985 (exhibit 9 to Rotheimer’s deposition), clearly reflects that as of that date, only Rotheimer had signed the cancellation. The letter requests that counsel procure Taylor’s signature in triplicate and return all of the documents to Rotheimer’s attorney. Consequently, even if the parties actually did agree to cancel their agreement, it cannot legitimately be argued that the contract had been cancelled prior to the disbursement of the earnest money by Hallmark & Johnson. The rights of the parties were established and fixed when the forfeiture was declared on April 18, 1985, and the subsequent cancellation of the contract was inconsistent with and contrary to Rotheimer’s election to declare a forfeiture. (See generally Vogel v. Dawdy (1985), 107 Ill. 2d 68, 481 N.E.2d 679; Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 311 N.E.2d 673.) In light of the unique set of facts before us, we believe that common sense dictates that the parties to the contract should have corrected any misconception as to the status of the contract on the part of the brokers in mid-1985 and certainly prior to December 1986.

Taylor’s claim that Hallmark & Johnson acted improperly because it was not in privity with Taylor is without merit. Although Hallmark & Johnson was not a signatory to the real estate sales contract, it was a party to the escrow agreement implicit in the language of the contract, and its right to a commission was controlled by the terms of that contract. Thus, Taylor cannot fairly claim that Hallmark & Johnson was not entitled to its commission merely because it was not a party to the sales agreement.

Taylor also claims that the declaration of forfeiture was ineffective. He initially contends that the letter to his attorney declaring the forfeiture was inadequate under the terms of the contract which required that notice be given to the buyer. This assertion must be rejected where, as here, Taylor testified at his deposition that he received a copy of the letter. Taylor next contends that the letter was insufficient because it merely refers to Rotheimer’s intention to declare a forfeiture in the future. This argument is also without merit. The letter explicitly declares a default in the performance of the contract as of April 18, 1985, and unequivocally states that Rotheimer will exercise his rights under paragraph five of the supplementary provisions to the contract. Dahm, Inc. v. Jarnagin (1985), 133 Ill. App. 3d 14, 16-17, 478 N.E.2d 641, 643-44; Perino v. Protect-All-Shelters, Inc. (1970), 128 Ill. App. 2d 477, 483-84, 262 N.E.2d 349, 352-53.

Although Taylor correctly argues that where the theory of equitable estoppel is not pleaded, it is waived (Hoover v. Crippen (1987), 163 Ill. App. 3d 858, 864, 516 N.E.2d 722, 726; Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 233, 382 N.E.2d 818, 822-23), this does not alter the fact that Rotheimer had declared a default and forfeiture of the contract and that Hallmark & Johnson acted in accordance with the terms of the listing agreements and the real estate sales contract.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) Summary judgment is a drastic remedy to be granted only where the movant’s right to it is clear and free from doubt. (Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 88, 530 N.E.2d 1055, 1057.) If the facts will allow more than one conclusion or inference, summary judgment should be denied. (Sutton, 176 Ill. App. 3d at 88, 530 N.E.2d at 1057.) The respondent need not prove his case at the summary judgment stage, but he may be required to present evidence which demonstrates the existence of a triable issue of fact. (Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 221, 490 N.E.2d 104, 107.) Inferences which may reasonably be drawn from the evidence are to be resolved in favor of the respondent. Kramer, 141 Ill. App. 3d at 221, 490 N.E.2d at 107.

In the instant case, the pleadings, deposition testimony, admissions, and affidavits indicate that there is. a genuine issue of material fact as to whether the real estate contract was cancelled and whether the cancellation was executed prior to the disbursement of the earnest money by Hallmark & Johnson. Because fair-minded persons could draw differing inferences from the facts presented, summary judgment should not have been entered in favor of Taylor. Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1078, 500 N.E.2d 454, 456.

In view of our holding that summary judgment was improperly granted, it necessarily follows that the order granting prejudgment interest must also be reversed.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRODIE YOUNG, Defendant-Appellee.
    First District (3rd Division)
    No. 1-87-3626
    Opinion filed July 18, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbogen and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

The State seeks reversal of an order of the trial court suppressing defendant’s post-arrest statements. Pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), the State has filed a certificate of impairment.

The facts in this case are not disputed. On March 12, 1987, a fugitive warrant was issued in Illinois for defendant’s arrest for the murder of Yankal Rudminsky. Pursuant to the warrant, defendant was arrested by law enforcement authorities on March 16 in Oneida, Wisconsin.

On March 17, a hearing was held in the circuit court of Outagamie County, Wisconsin, on a petition seeking temporary physical custody of defendant on the grounds that he was a fugitive from Illinois. Defendant was represented by counsel at the hearing.

In support of the petition, the assistant District Attorney presented the testimony of Lieutenant Robert Nelson of the Outagamie County sheriff’s department. Nelson testified that on March 15, 1987, he received a telephone call from Detective Larry Thezan of the Chicago police department. According to Nelson, Thezan informed him of the arrest warrant for defendant and stated that he believed that defendant was living with his aunt in Oneida, Wisconsin. Subsequently, Nelson and another officer arrested defendant at the address given to them by Thezan. Based on the testimony, the court granted the District Attorney’s petition.

On June 9, 1987, defendant’s attorney informed the court that defendant would waive extradition to Illinois. The court directed the sheriff of Outagamie County to comply with the terms of the fugitive warrant and surrender defendant to the Illinois authorities.

At the close of the hearing, defendant’s attorney advised the court that defendant, pursuant to the fifth and sixth amendments, was asserting, for the present and future, his right to remain silent and to have the assistance of counsel prior to any interrogation. Counsel stated that he was concerned that defendant might be subjected to coercion, duress, and possible violence by the Illinois authorities on the return trip to Illinois in order to compel defendant to confess or make a self-incriminating statement. Defendant, when asked by counsel whether he wished to assert these rights, responded, “Right.” Defense counsel then requested that the Illinois officers transporting defendant be told of the assertion of his rights, and further, that the court order that the Illinois authorities not attempt to interrogate defendant outside of the presence of defendant’s attorney.

The trial court agreed to enter such an order for defendant to take with him. The court noted, however, that it did not know whether such an order would be valid. There is no evidence in the record to indicate that such an order was ever entered.

Defendant made statements to Thezan on the return trip to Illinois. Defendant motioned to suppress those statements. On September 22, 1987, at the hearing on defendant’s motion, Thezan testified that on June 12, he and Detective Ronald Yawger drove to Outagamie County jail to transport defendant back to Illinois. According to Thezan, defendant was turned over to him and the other detective by the Outagamie sheriffs. Thezan was not informed that defendant had indicated that he wished to exercise his right to remain silent or that he had either requested or retained an attorney.

When en route to Chicago, Thezan asked defendant whether he knew what “this was about,” and defendant responded that he did. In response to Thezan’s question whether he wanted to talk about it, defendant responded that he did. Thezan then read defendant his Miranda warnings, defendant acknowledged that he understood them, and gave Thezan a statement concerning the murder.

Upon arriving in Chicago, defendant was taken to Area 6 Violent Crimes and placed in an interview room. Defendant was again read his Miranda warnings, he acknowledged that he understood them, and again made statements concerning the murder. Defendant subsequently made a third statement to Assistant State’s Attorney Trutenko after again being given Miranda warnings. According to Thezan, at no time did defendant indicate that he wanted an attorney present or that he had been represented by an attorney in Wisconsin or in Illinois.

Defendant premised his motion to suppress on the grounds that the Illinois authorities had violated his fifth and sixth amendment rights to remain silent and to have the assistance of counsel. He argued that the assertion of those rights in Wisconsin should be imputed to the Illinois authorities. The State argued that knowledge should not be imputed, and that the statements should not be suppressed because the Illinois law enforcement authorities did not know, nor could they reasonably have known, that defendant had indicated that he wished to remain silent and not be questioned outside of the presence of counsel. The court granted defendant’s motion. We reverse.

The State contends that the trial court erred in suppressing defendant’s statement. It urges three arguments in support of its position. Defendant, naturally, argues to the contrary. Since the fifth and sixth amendment rights exist independently of each other, we will address each separately.

The fifth amendment of the United States Constitution provides, in pertinent part, that “[n]o person *** shall be compelled in any criminal case to be a -witness against himself.” (U.S. Const., amend. V.) An accused, subjected to custodial interrogation, is entitled to admonition of his fifth amendment rights prior to the commencement of any questioning. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) Once a suspect has asserted his right to remain silent, his subsequent waiver of that right, when police again initiate interrogation, will be deemed legally valid if the waiver is knowing, intelligent, and voluntary. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) Contrarily, where the accused has asserted his right to an attorney during the interrogation, rather than merely his right to remain silent, his subsequent waiver of the right to counsel will be deemed involuntary, as a matter of law. Edward v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378,101 S. Ct. 1880.

The State first argues that there was no violation of defendant’s fifth amendment rights because those rights did not attach until defendant was subject to custodial interrogation. It argues, since defendant was not subjected to interrogation while he was in custody in Wisconsin, he was not “entitled to invoke the protection afforded by Miranda.” The State, quoting Rhode Island v. Innis (1980), 446 U.S. 291, 300, 64 L. Ed. 2d 297, 307, 100 S. Ct. 1682, 1689, argues that Miranda protections “are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”

We take no exception to the State’s interpretation of the application of Miranda. It is, however, axiomatic that the thrust of Miranda was to create new duties for the police, not to diminish the preexisting fifth amendment rights of individuals. An individual’s fifth amendment rights exist exclusive of the right to receive Miranda warnings. Therefore, we do not view custodial interrogation as an indispensable requisite for the invocation of those rights.

In the typical case, a defendant asserts his fifth amendment rights at the point of interrogation to the interrogating officer. The circumstance whereby an accused may be in custody, and yet not have been subjected to interrogation, means only that he was not entitled to be admonished of his right to keep silent and to have the assistance of counsel during interrogation, not that he did not have such rights. While it is custodial interrogation which triggers the requirement for Miranda, the right to remain silent and to assert one’s desire to have assistance of counsel during interrogation may attach as early as at the investigatory stage of the prosecutorial process. However, the assertion of the right to counsel must be conveyed to someone, usually a law enforcement authority, who would otherwise seek to question the accused in the adversarial or investigative process.

In People v. Christomos (1988), 172 Ill. App. 3d 585, 527 N.E.2d 41, the defendant was involved in a personal injury accident with his wife. The police arrived on the scene and transported the defendant to a hospital. Because the defendant was upset to the point of being unruly, the policeman handcuffed him; however, the policeman considered the defendant to be a victim, and not a suspect, and therefore, he did not arrest him. While the defendant was at the hospital, he stated that he wanted the assistance of an attorney. When the defendant was subsequently placed in police custody, he again asserted his right to counsel.

The court found that, in addition to the defendant’s assertion of his rights after having being taken into custody, the defendant had unequivocally invoked that right even before he was in custody. The police were aware of the defendant’s precustody request, yet they initiated interrogation. The court held the police had failed to honor the defendant’s fifth amendment right to counsel and, therefore, the defendant’s statements were suppressed. We recognize that Christomos presents the opposite circumstance of this case, yet we believe that it lends support to our belief that the right to assert one’s fifth amendment rights need not have, as a precondition, custodial interrogation. See also People v. Knapp (1988), 533 N.Y.S.2d 413, 141 Misc. 2d 517.

While we here conclude that a defendant may invoke his fifth amendment rights prior to the initiation of custodial interrogation, we believe, that on this set of facts, defendant’s assertion was ineffective and ultimately unavailing. We turn then to the State’s argument that defendant’s precustodial interrogation assertion of his fifth amendment rights to the Wisconsin authorities should not be imputed to the Chicago authorities.

It is settled in Illinois that knowledge, on the part of law enforcement authorities within the State, of an accused’s invocation of his fifth or sixth amendment rights will be imputed to other law enforcement authorities within the State. (See People v. Medina, (1978), 71 Ill. 2d 254, 375 N.E.2d 78; People v. White (1975), 61 Ill. 2d 288, 335 N.E.2d 457, cert. denied (1976), 424 U.S. 970, 47 L. Ed. 2d 738, 96 S. Ct. 1469; People v. Blanchard (1967), 37 Ill. 2d 69, 224 N.E.2d 813; People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.) The objective of imputing such knowledge is twofold. One is to prevent the accused’s request for counsel during interrogation from being nullified by police authorities “ ‘by the expedient of transferring his custody for questioning to an officer who would be unaware of the request for an attorney’ ” (White, 61 Ill. 2d at 294, quoting Blanchard, 37 Ill. 2d at 73), and two is to prevent “ ‘an attempt by police to avoid responsibility by dividing it among different individuals’ ” (People v. Warner (1986), 146 Ill. App. 3d 370, 379, 496 N.E.2d 1010, cert. denied (1987), 480 U.S. 938, 94 L. Ed. 2d 776, 107 S. Ct. 1586, quoting People v. Gabbard (1979), 78 Ill. 2d 88, 98, 398 N.E.2d 574). The rule as it is applied to intrastate agents has not been so routinely applied when the law enforcement authorities, to whom the right has initially been asserted, are interstate.

Defendant places great reliance on People v. Bates (1985), 133 Ill. App. 3d 205, 478 N.E.2d 1106. In Bates, the defendant, who was suspected of having committed a crime in Illinois, surrendered himself to the Iowa authorities. The defendant told the Iowa authorities that he would not speak about the crime until he talked to his attorney. Illinois police travelled to Iowa and transported the defendant to Chicago. No interrogation occurred on the return trip; however, once back in Illinois, the defendant was given Miranda warnings and subsequently questioned by a Cook County assistant State’s Attorney.

This court found that the defendant, Bates, had made a clear assertion of his rights in Iowa. The court noted that at some time prior to the defendant’s trial, the Chicago police were aware, from information contained in a police “street file,” that the defendant would not talk to the Iowa authorities until he spoke to his attorney. We there stated that even though there was nothing to indicate that the State’s Attorney had that information prior to interrogating the defendant, “even a good-faith lack of knowledge on the part of the Cook County authorities [would] not affect our holding.” Bates, 133 Ill. App. 3d at 207.

Significantly, in Bates, the Chicago police had actual knowledge of the defendant’s assertion of his rights, whereas, in the present case, the Chicago police had no such knowledge. This court did not address whether, in the absence of the street file, or some other evidence that the Chicago police knew of the defendant’s assertion of his rights, that knowledge would have been imputed to other State agents. However, we believe that the knowledge was imputed to the State’s Attorney because it had been contained in the files of the Chicago authorities, not because it was known to the Iowa authorities.

Defendant also argues, with reliance on Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, that the lack of diligence by the Chicago police in ascertaining whether defendant had asserted his rights cannot justify their failure to honor those rights. Further, he argues, custodial interrogation must be conducted pursuant to established procedures which must enable an officer who proposes to initiate interrogation to determine whether the suspect made a prior request for counsel. Defendant then asserts that the Chicago authorities had a duty to inquire of the Wisconsin authorities whether defendant had asserted his rights.

Initially, we note that in Roberson the court’s comments regarding the officer’s diligence were in reference to the fact that the defendant there had not only communicated the assertion of his rights to the initial interrogating officer, but the invocation had also been memorialized in a written report which was available to the officer who conducted the second interrogation. The second officer simply failed to examine the report. Additionally, we note that the knowledge attributed in Roberson was between agents within the same State, and seemingly in the same agency. Further, we believe that the Roberson court’s concern for following established procedures for interrogation contemplated intrastate conduct, not interstate. A different conclusion would place an unreasonable burden on law enforcement authorities to be familiar with both intrastate and interstate procedures.

As we have stated, there is no evidence that any of the papers which Detective Thezan obtained from the Wisconsin authorities contained any reference to defendant’s invocation of the right to counsel. Further, we do not believe that the law enforcement authorities here should have been required to make inquiries of the Wisconsin authorities as to whether defendant had invoked his fifth amendment rights. Such a requirement would impose an additional duty upon law enforcement authorities to investigate whether the right had been asserted and to whom. We decline the imposition of a duty with seemingly limitless extensions.

We agree with the State’s argument that there was no expectation that defendant here would be subjected to interrogation in Wisconsin regarding the offense and would therefore invoke his rights. Extradition proceedings are limited in nature. Under the Uniform Criminal Extradition Act, the guilt or innocence of the accused may not be inquired into, except as it may be involved in identifying the person held as the person charged with the crime. (Wis. Stat. Ann. §976.03 (West 1985); Ill. Rev. Stat. 1987, ch. 60, par. 37.) Moreover, since extraditions are not considered criminal per se, they do not give rise to the need for constitutional safeguards as in judicial criminal proceedings. Thus, we find it reasonable that the Chicago authorities did not expect that defendant had invoked his constitutional rights at the extradition proceeding.

We believe that People v. Warner (146 Ill. App. 3d 370, 496 N.E.2d 1010), while not entirely on point, provides the necessary guidance for the proper resolution of this issue. In Warner, the defendant, who was suspected of having committed a crime in Illinois, was arrested by the Florida FBI. The defendant was advised by the FBI of his Miranda rights and taken to their office for processing. The defendant told the FBI agents that he wished to speak with an attorney prior to answering any questions, and the agents immediately refrained from asking any questions. The FBI agents did not notify the Chicago police of defendant’s arrest; however, one of the agents did prepare a summary of the FBI’s contact with the defendant and sent it to the Chicago office of the FBI. The summary was not disseminated to any other individual or agency. The defendant was subsequently turned over to the Florida authorities, who detained him in a Florida prison.

About three months later, the Chicago police flew to Florida and returned the defendant to Illinois. Papers which the Chicago police received from the Florida correctional facility did not include any report prepared by the FBI. The defendant was given Miranda warnings; however, no interrogation occurred until the defendant was back in Chicago. Prior to interrogation by an assistant State’s Attorney, the defendant was again given Miranda warnings. The defendant acknowledged that he understood his rights and agreed to speak with the interrogating attorney.

The defendant subsequently motioned to suppress the statements which he had made to the Chicago authorities on the basis that the interrogation violated his fifth amendment rights which he had invoked when he had been questioned by the FBI in Florida. In affirming the trial court’s denial of the defendant’s motion, the court stated, inter alia, that the danger of coercive interrogation did not arise where the defendant, while in Florida, had been given Miranda warnings, requested and was given the assistance of counsel, and there was no indication that there was any impropriety in his treatment. Additionally, the court stated that there was nothing in the record to demonstrate that the FBI or the Chicago authorities had engaged in a course of conduct which would have the effect of shifting the defendant’s custody and interrogation from one unit to another so that the authorities could avoid the responsibility of respecting his request for counsel, and thereby force him to confess to his involvement in criminal activity.

Similarly, in this case, there is no indication that defendant, while in Wisconsin, was subjected to any interrogation or that his will was in any way overcome. Further, and most compelling, the circumstances, against which the imputation of knowledge is designed to protect, simply are not present in this case. Like in Warner, we are unable to conclude that the facts here present circumstances wherein authorities wore down the accused and persuaded him to incriminate himself, notwithstanding his earlier request for assistance of counsel. Smith v. Illinois (1984), 469 U.S. 91, 98, 83 L. Ed. 2d 488, 496, 105 S. Ct. 490, 494.

Defendant makes much of the fact that, unlike in this case, in Warner three months had passed before the Chicago authorities initiated interrogation of the defendant. While the three-month period might have been a factor in the court’s decision not to impute the Florida knowledge, we do not believe it to have been the most significant factor. Clearly, the court’s decision was based on a combination of circumstances, which led it to ultimately conclude that it would be unreasonable to impute the Florida knowledge. We likewise believe that, on these facts, it would be unreasonable to impute to the Chicago authorities knowledge of the Wisconsin authorities.

Finally, the State argues that even if defendant did properly invoke his fifth amendment rights during the extradition proceeding, he subsequently waived them.

The State urges, relying on Dunkins v. Thigpen (11th Cir. 1988), 854 F.2d 394, cert. denied (1989), 489 U.S. 1059, 103 L. Ed. 2d 597, 109 S. Ct. 1329, and similar cases, that if a suspect is released from custody after invoking his fifth amendment right to counsel, the request is dissipated and the per se rule in Edwards is inapplicable. Dunkins is inapposite since defendant here was continuously in custody, from the time of his arrest in Wisconsin until his extradition to Illinois.

However, since we have determined that knowledge of defendant’s assertion of his rights cannot be attributed to the Chicago police, the per se rule in Edwards was not contravened and is not applicable here. Therefore, a determination of the voluntariness of defendant’s waiver must be determined based on the totality of the circumstances. See Warner, 146 Ill. App. 3d at 378.

We note in passing that the State’s reliance on Commonwealth v. Santiago (Pa. Super. Ct. 12/29/89), No. 2164, is misplaced. According to the State’s brief, in Santiago, the court concluded that because the defendant, after invoking his right to counsel, was given the opportunity to consult with counsel on one charge, the “prophylactic” purpose of Edwards had been satisfied, and therefore the police were not precluded from initiating interrogation on unrelated charges. The State then argues that since defendant here had the benefit of counsel, Edwards did not apply to the subsequent questioning. We note that unlike Santiago, in the present case, the interrogation of defendant, which followed his attempt to assert his fifth amendment rights, pertained to the same, not an unrelated, charge.

Defendant’s waiver would be valid only if it was knowing, intelligent, and voluntary. (People v. Thompkins (1988), 121 Ill. 2d 401, 433, 521 N.E.2d 38, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187; People v. Stevens (1989), 188 Ill. App. 3d 865, 544 N.E.2d 1208.) Defendant makes reference to the fact that, at the time he was transported from Wisconsin, he was only 17 years old. The trial court made no findings of fact on the issue of the voluntariness of waiver and we do not decide that question here. We conclude only that there is no evidence presented, other than defendant’s age, to support a claim that he was coerced into making statements to the Chicago authorities.

We turn now to defendant’s argument that his sixth amendment right to counsel was also violated. The right to counsel is provided in the sixth amendment to the Constitution of the United States and is made binding upon the States by the fourteenth amendment. (Gideon v. Wainwright (1963), 372 U.S. 335, 342, 9 L. Ed. 2d 799, 804, 83 S. Ct. 792, 795.) Under the sixth amendment, a defendant has a right to counsel at all critical stages of the criminal proceedings against him. (United States v. Wade (1967), 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 1156, 87 S. Ct. 1926, 1931.) A critical stage of a criminal proceeding is when criminal charges have been brought in a judicial tribunal against a defendant, entitling the defendant to his constitutional right to counsel. Kirby v. Illinois (1972), 406 U.S. 682, 688, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881-82.

Unlike the fifth amendment right to counsel, the sixth amendment right to counsel attaches when adversarial judicial proceedings have been initiated. (Kirby, 406 U.S. at 688, 32 L. Ed. 2d at 417, 92 S. Ct. at 1881.) The methods of initiating adversarial judicial proceedings may be by way of formal charge, preliminary hearing, indictment, information or arraignment. (Kirby, 406 U.S. at 689, 32 L. Ed., 2d at 417, 92 S. Ct. at 1882; People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) However, it has not been held that an arrest, by itself, triggers the right to counsel. (United States v. Gouveia (1984), 467 U.S. 180, 189-90, 81 L. Ed. 2d 146, 155, 104 S. Ct. 2292, 2298.) There is authority for the proposition that whether adversarial proceedings commence with the filing of a complaint is dependent upon the degree of prosecutorial involvement. See State v. Johnson (Iowa 1982), 318 N.W.2d 417, 435, cert. denied (1982), 459 U.S. 848, 74 L. Ed. 2d 95,103 S. Ct. 106.

In Illinois, there has been a split of opinion in the appellate court on this issue. Compare People v. Fleming (1st Dist. 2d Div. 1985), 134 Ill. App. 3d 562, 480 N.E.2d 1221; People v. Curtis (1st Dist. 3d Div. 1985), 132 Ill. App. 3d 241, 476 N.E.2d 1162, rev’d on other grounds (1986), 113 Ill. 2d 136, 497 N.E.2d 1004; People v. Jumper (4th Dist. 1983), 113 Ill. App. 3d 346, 447 N.E.2d 531 (sixth amendment right automatically attaches upon filing of criminal complaint), with People v. Racanelli (1st Dist. 5th Div. 1985), 132 Ill. App. 3d 124, 476 N.E.2d 1179; People v. Boswell (1st Dist. 4th Div. 1985), 132 Ill. App. 3d 52, 476 N.E.2d 1154, appeal allowed (1986), 111 Ill. 2d 571, 488 N.E.2d 273 (right to counsel does not attach upon filing of criminal complaint and issuance of arrest warrant absent proof of significant prosecutorial involvement in procuring arrest warrant).

Our supreme court, without expressly stating, has apparently adopted the latter view. In People v. Wilson (1987), 116 Ill. 2d 29, 50-51, 506 N.E.2d 571, the court noted that the complaint in that case was presented to the judge ex parte, by a police officer, rather than by an assistant State’s Attorney, and that the complaint was not filed in court until after the defendant appeared in the lineup. The court then held that the procedure followed there could not fairly be construed as the beginning of adversary proceedings between the State and the defendant.

In this case, the complaint for a preliminary hearing was presented to the judge by a detective, not by an assistant State’s Attorney, and it was stamped filed in the circuit court on June 15, 1987, after defendant had been extradited from Wisconsin. Further, at the hearing on defendant’s suppression motion, the State argued that there was absolutely no evidence presented that the State’s Attorney had anything to do with securing the warrant for defendant’s arrest. We have not been presented any facts which indicate the level of the prosecution’s involvement, if any, in the extradition process. We note, without further comment, that there is a notation on defendant’s arrest report which indicates that the warrant was approved by Assistant State’s Attorney Trutenko. Based on the rule adopted in Wilson, in the absence of evidence indicating significant prosecutorial involvement, we conclude that the filing of the complaint here did not mark the beginning of criminal adversary proceedings.

Defendant asserts that the extradition proceeding was tantamount to an “arraignment or similar proceeding,” and marked the commencement of adversary judicial proceedings. We disagree. The sixth amendment right attaches at points in the adversary judicial criminal proceedings against a defendant which may be termed a “critical stage.” (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 2d 158, 53 S. Ct. 55.) Generally, a critical stage has been reached whenever constitutional or other rights can be asserted or waived, or where events occur that can prejudice the defendant’s subsequent trial. See People v. Bonner (1967), 37 Ill. 2d 553, 229 N.E.2d 527, cert. denied (1968), 392 U.S. 910, 20 L. Ed. 2d 1368, 88 S. Ct. 2067.

As we have stated, an extradition proceeding, unlike an arraignment, involves no inquiry into the guilt or innocence of an accused. Also, as we have noted, there is authority for the proposition that an extradition proceeding is not criminal in nature per se. Further, we have reviewed the transcript of defendant’s extradition proceedings and have found them to have been in compliance with the statutory mandate, occasioning no event whereby defendant’s rights were in any way jeopardized. We do not believe that the extradition proceedings constituted a “critical stage” in the judicial criminal proceedings here. See United States ex rel. Calhoun v. Twcmey (7th Cir. 1971), 454 F.2d 326.

For the foregoing reasons, we reverse the order of the circuit court.

Reversed.

CERDA, P.J., and WHITE, J., concur.