author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN E. SANDERS, Defendant-Appellant.
    Fourth District
    No. 4—89—0530
    Opinion filed June 7, 1990.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

A Coles County jury returned verdicts finding defendant John E. Sanders guilty of the offenses of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—3) and theft over $300 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16—1(a)(1)). On May 10, 1989, the circuit court entered judgment on the verdict finding him guilty of residential burglary. The court determined theft to be an included offense of residential burglary, and it dismissed that charge. The court subsequently sentenced defendant to a maximum, extended-term sentence of 30 years’ imprisonment.

Defendant now appeals, contending (1) the State failed to prove him guilty of residential burglary beyond a reasonable doubt; (2) improper and inflammatory comments made by the State during closing arguments deprived him of a fair trial; (3) he was improperly penalized for exercising his constitutional right to a trial by jury; and (4) the trial court erred at sentencing when it failed to consider certain mitigating factors which were present. For the reasons hereinafter stated, we affirm.

The evidence at trial undisputedly showed that, on September 10, 1988, the residence of Ruth Wheeler in Charleston, Illinois, was burglarized at some time between the hours of 5 and 10:30 p.m. Apparently, the burglar had obtained entry into the home by breaking a sliding glass door with a crowbar taken from Wheeler’s garage. The home was completely ransacked, but police officer testimony revealed the police were unable to uncover any physical evidence, including fingerprints, from the scene of the crime.

Wheeler testified she found numerous pieces of jewelry missing that evening, and she described those missing items to the police. During trial, the State showed Wheeler various pieces of jewelry labeled exhibit Nos. 7 through 38. Wheeler identified all 31 pieces of jewelry as her own. She further stated she had previously identified those items when the police brought them to her for identification in late September 1988. As we later explain, these items had previously been recovered by the police from a van in which defendant was a passenger.

Anthony Madison, also known as Rasheed, testified he lived next door to defendant in a trailer park during the fall of 1988. Testimony later revealed that trailer park was located in Charleston. Madison stated that, on September 28, 1988, he had a conversation with defendant during which defendant told Madison defendant “had to get out of town soon.” Madison said defendant told him he had some “things,” and he wondered if Madison “could use or *** wanted to buy” those items. Madison said defendant then showed him some jewelry which he had retrieved from a gray, nylon gym bag with a shoulder strap. During trial, Madison identified some of the jewelry which Wheeler had previously testified belonged to her as part of the jewelry defendant had tried to sell to him on that date.

Madison further stated that, when he asked defendant where he had gotten the jewelry, defendant responded it was “some stuff he [had] picked up from something he had hit, a place he had hit.” He stated defendant mentioned the place “was in town.” Madison indicated he was familiar with the phrase “ ‘to hit’ a place,” and understood it to mean breaking into a place or stealing from a place. Madison said he told defendant he did not think he could use the jewelry at that time but would talk to him later.

Madison said that, following this conversation with defendant, he spoke with one of his neighbors, Peggy Hayes, and then decided to talk to the police at Eastern Illinois University. He stated he briefly described to them some of the items of jewelry defendant had shown him. He said the police instructed him to meet again with defendant and see if he still wanted to sell the jewelry in question. Police officer testimony corroborated these arrangements.

Madison testified he did, in fact, meet with defendant and another person, Mike Collins, outside his trailer later that same day. Madison admitted he did not actually see any jewelry at that time but stated defendant indicated he had the jewelry with him in a bag he was holding. At trial, Madison identified the bag which defendant had in his possession on that evening as State’s exhibit No. 6, a purplish velvet bag with a Crown Royal insignia on it.

Madison said he told defendant they were going to meet up with another person who was interested in buying the jewelry from him, when, in fact, the police were going to be present at that location and ready to arrest defendant. Madison stated the plan failed when Collins saw the police and alerted defendant, and defendant ran from the scene. During his testimony, Madison admitted he had pleaded guilty in 1988 to a misdemeanor charge of deceptive practices.

Defendant testified Madison was the one who approached him on September 28, 1988, and at that time Madison asked him if he knew anyone who would be interested in buying some cocaine. Defendant said he later observed police in the area and thought Madison was “trying to set [him] up on a drug deal.” He denied ever offering to sell jewelry to Madison.

John Fasig testified he had a conversation with defendant on September 29, 1988, during which defendant told him “[h]e [wanted] a ride to Mattoon so he could get some money to avoid arrest to get out of town.” Fasig said he knew there was a warrant out for defendant’s arrest, and he wanted to make some extra money, so he contacted the police and told them he knew where defendant was located. He said he made arrangements with the police to have defendant arrested.

Fasig stated he agreed to take defendant to Mattoon. While he was waiting in his van, he observed defendant exit one trailer and enter another with a gray satchel-type gym bag in his possession. He said he then watched defendant leave that trailer with no bag in his hands. Fasig said defendant got into his van and sat in the right passenger seat.

While they were en route to Mattoon, the police stopped Fasig’s van as previously arranged. Fasig said that, as the police stopped him, he observed defendant go into his back pocket and retrieve a bag out of it. He said he watched defendant stick the bag into the side compartment of the van. He identified the State’s exhibit No. 6, the purplish velvet Crown Royal bag, as the bag he saw defendant stick into the passenger compartment. Fasig also generally identified the 31 pieces of jewelry as “stuff that was dumped in the floorboards of [his] van.” He maintained he had not had the jewelry in his possession and had not ever seen it until the police “arrested” him and showed him the items in his van. He further stated he had not seen the Crown Royal bag prior to that time.

Defendant testified Fasig had approached him on September 29, 1988, and asked defendant if he would like to accompany him (Fasig) on a drive to Mattoon. He said he agreed to go along with Fasig and was subsequently arrested when the police stopped Fasig’s van. He maintained he was not familiar with the purple Crown Royal bag or the jewelry found inside of it.

Charleston police officer Joseph VanGundy corroborated Fasig’s testimony concerning the discovery of the jewels in Fasig’s vehicle. He indicated the police discovered jewelry in the passenger-side door pocket, along with the State’s exhibit No. 6, the Crown Royal bag. He also stated jewelry was discovered lying on the floor behind the passenger seat. He admitted no jewelry was found on defendant’s person.

VanGundy stated he gathered up all of the jewelry he found in the van, exhibit Nos. 7 through 38, placed the items in the Crown Royal bag and took them over to Wheeler’s home for her perusal. VanGundy impeached the testimony of Wheeler to some extent when he stated Wheeler was only able to positively identify 9 of the 31 pieces of jewelry as her own.

Peggy Hayes testified on behalf of the State that she had seen defendant with a bag of jewelry in his possession, and he had given her a pinky ring before the end of October 1988. Wheeler identified the pinky ring as one of her rings which was missing from her home after the September 10,1988, burglary.

During his case in chief, defendant called two of his friends, Linda Fitzgerald and Jerry Lee Gordon, Jr., as witnesses. Both testified they had been with defendant during at least part of September 10, 1988, the date the burglary occurred. Defendant corroborated this testimony. Another friend, Peggy Hayes, said she recalled a day when defendant and Gordon were together in her trailer from 4 until 11 p.m. but could not remember the exact date.

Elaine Powell, another of defendant’s friends, testified that, around September 18, 1988, she saw Madison and Fasig conversing in the trailer court and then observed Madison hand Fasig a lumpy purple bag. However, her testimony was undercut when she incorrectly identified those men from photographs she was shown.

Defendant now maintains on appeal that the foregoing evidence was insufficient to support a finding of guilty of residential burglary beyond a reasonable doubt. He emphasizes the absence of any evidence placing him at or within close proximity of Wheeler’s residence around the date of the offense, as well as the absence of any physical evidence from the crime scene itself.

To support his contention, defendant mainly relies upon People v. Phoenix (1981), 96 Ill. App. 3d 557, 421 N.E.2d 1022, and People v. Johnson (1981), 96 Ill. App. 3d 1123, 422 N.E.2d 19.

In Phoenix, the evidence showed the police observed two defendants and another man remove a rototiller from a car and place it on the porch of a building at 3 a.m. When questioned by the police, the three males initially denied any knowledge of the rototiller. Defendant Joseph Phoenix later stated he and the other two men had purchased the rototiller for $10 at about 1:15 a.m. from a man named Pedigo. Pedigo corroborated this statement. The victim testified she noticed the rototiller missing from her storage shed at 4:50 a.m. on that same date and subsequently identified the rototiller found on the porch as her own.

In Johnson, the evidence showed a woman’s apartment was burglarized while she was away one weekend, and personal property valued at $1,200 was taken. The woman initially thought her landlord had taken her property because she was in arrears on her rent payments, but her landlord denied any knowledge concerning the missing items. When an acquaintance informed the woman the next day that her property was being sold out of a van in Freeport, Illinois, the police investigated and pursued the driver of the van when he fled. The police subsequently arrested defendant, the driver of the van, and discovered a small amount of the woman’s items still remaining in the van.

In each of the foregoing cases, the appellate court reversed burglary convictions but upheld theft convictions entered against the defendants. Under certain circumstances, a fact finder can infer from a defendant’s possession of property recently taken in a burglary that the defendant is guilty of that burglary. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) However, the courts in both Phoenix and Johnson concluded the Housby inference was not available under the circumstances present in the case, and the evidence failed to support the burglary convictions.

We, too, conclude the Housby inference is not available here, for defendant’s possession of the items taken from the Wheeler residence was not recent. However, in any event, we hold the evidence was sufficient to support a conviction for burglary absent that inference.

The most crucial difference between the instant case and Phoenix and Johnson is that, here, the State introduced evidence that defendant admitted he had obtained the items of jewelry, identified by the victim as her own, from a place he had “hit.” The witness who testified to that conversation stated he understood the term “to hit” to mean breaking into a place or stealing from a place. Although defendant’s possession of the stolen items was not as recent as the possession in Phoenix and Johnson, we conclude the evidence of his possession, along with his admission, was sufficient to prove defendant guilty of residential burglary beyond a reasonable doubt.

Next, defendant maintains he was denied a fair and impartial trial when the prosecutor argued during closing that defendant suborned perjury in cooperation with other witnesses and that he may have had an accomplice. We disagree.

During closing arguments, the prosecutor stated as follows:

“[Ojnce the defendant decides to present evidence, once the defendant decides he wants to testify, then that evidence is also to be considered by you in determining the guilt or innocence of the defendant. And if the defendant tries to lie, tries to put on a sham, then that, ladies and gentlemen, can be used against him. The defendant’s defense is a blatant attempt to weave a network of lies, try to explain everything, try to tie up all the witnesses of the People and get out of this charge, and to try to flimflam you into finding him not guilty.
* * *
First of all, [the defendant] tries to use the poor pitiful Elaine Powell. Now, we don’t know Elaine’s motives. We saw her take the stand and smile at [defendant]. You saw the defendant smiling at her. We know about the lengthy conversations. He talked to her but we don’t know what he is trying to sweet talk her into doing. You do know when she took the stand she wouldn’t look at you directly. She looked sideways at me, focused her attention on [defendant]. He has had several lengthy conversations with Elaine. She admitted to that. Early in January. He is getting ready for trial, I might add, in early January, which is approximately four months after September, and they concoct a story.
* * *
She is simply trying to make up a story to try to tie up what the defendant knew was the testimony in the case and to lie to you too, again, try to get him out of this offense.” (Emphasis added.)

Also, in rebuttal closing arguments, the prosecutor stated:

“[Elaine Powell’s] testimony does not raise a reasonable doubt as to the defendant’s guilt. In fact, it raises strong evidence again of a fabricated defense by this defendant to try to get his friends together to remember things in such a way that it will help him out of this charge.
* * *
This defendant has every reason — again, I would not want to imply that [defense counsel] would be doing anything improper in defending his client. He has to go with the evidence and what his defendant tells him has happened and what the defendant’s friends tell him has happened. But [defendant] has every reason to attempt to concoct this false story to attempt to get his friends, Jerry and Elaine[,] to testify to what he wants them to remember as happening because he is trying to get out of being convicted. *** None of [the State’s witnesses] have any motive in lying, ladies and gentlemen of the jury, and I think you would weigh that in reviewing their testimony; whereas, the defendant and his good friends Jerry, good friend Elaine, have reasons to lie, have reasons to try to remember something perhaps not exactly as they remember it. If John tells them it happened that way, they will remember it and come up here and testify for you ***.” (Emphasis added.)

Defendant contends these repeated comments by the State concerning defendant’s attempts to “put on a sham” and to work with his friends to “concoct a story” were improper because they were unsupported by the evidence and served only to arouse the jury’s antagonism against him. Defendant cites a number of appellate and supreme court cases to support his contention.

However, in each of the cases cited by defendant, the State in closing accused the defendant’s counsel of engaging in defense trickery. The courts found this tactic objectionable partially because it drew the focus of the jury away from the determination of defendant’s guilt or innocence and tended to put the defense attorney on trial. (See People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349; People v. Ray (1984), 126 Ill. App. 3d 656, 467 N.E.2d 1078; People v. Clark (1983), 114 Ill. App. 3d 252, 448 N.E.2d 926; People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011.) Here, the prosecutor clearly stated she did not mean to imply from her comments that defense counsel had engaged in any impropriety in the defense of his client, the defendant.

However, it is proper for an attorney to comment on the credibility of witnesses so long as it is based on an inference which might logically be drawn from their demeanor or testimony. (People v. Bratton (1989), 178 Ill. App. 3d 718, 533 N.E.2d 572; People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011.) Here, the defense witnesses in question stated they were friends of defendant, and Elaine Powell in particular testified she spoke to defendant on numerous occasions prior to trial. We cannot say the comments by the State were not based on reasonable inferences drawn from the evidence presented.

In the same vein, we are concerned with the prosecutor’s statement that “perhaps the defendant and someone else” committed the crime in question, for the evidence is wholly devoid of any suggestion defendant may have had an accomplice.- While arguments of this type which are not based upon facts in evidence are improper (People v. Rogers (1988), 172 Ill. App. 3d 471, 526 N.E.2d 655), we note the comment was speculative and isolated. Moreover, we do not see any substantial prejudice to defendant arising from the suggestion he may have had an accomplice. We conclude any error from this improper argument was harmless.

Next, defendant claims he was improperly penalized for exercising his constitutional right to a trial by jury because the State made him a pretrial offer of 15 years in prison, but, after he rejected it, proceeded to trial and was convicted, the State sought and successfully obtained a 30-year maximum extended-term sentence. He relies primarily upon People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167, which is clearly distinguishable from the instant case.

In Walker, a defendant initially pleaded guilty to various counts in an indictment in exchange for which the State agreed to recommend a 60-year sentence. The court inaccurately informed defendant of the sentencing possibilities in admonishing him pursuant to Supreme Court Rule 402(a) (73 Ill. 2d R. 402(a)). The court later vacated that plea. On the day of trial, defendant entered an unnegotiated plea of guilty, and the State subsequently sought and obtained a sentence of death.

On appeal, that defendant argued the State violated his due process rights when it sought the death penalty after he had successfully vacated his initial guilty plea. He contended those actions by the State evidenced prosecutorial vindictiveness.

In its plurality opinion, three justices of the supreme court noted that normally a defendant who knowingly, voluntarily and intelligently chooses to proceed to trial and risk imposition of a greater sanction rather than plead guilty under a plea bargain will be held to the choice he has made. However, in vacating defendant’s sentence of death, the plurality concluded the vindictiveness principles set forth in North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, and Blackledge v. Perry (1974), 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098, were triggered when “a prosecutor without notice increases the possible sanction severity for no valid reason after the defendant has exercised a procedural right.” (Walker, 84 Ill. 2d at 523-24, 419 N.E.2d at 1174.) Furthermore, that court indicated circumstances such as those present there gave “the appearance of vindictiveness *** when a prosecutor changes his mind in the absence of any alteration in the facts other than a defendant’s invocation of a right the law plainly affords.” Walker, 84 Ill. 2d at 524, 419 N.E.2d at 1175.

We refuse to apply the reasoning of Walker to the instant case because it involved, first, the penalty of death. Justice Ryan, who concurred in the result reached by the plurality, wrote separately and strictly limited his concurrence to death penalty cases. In addition, Walker involved a plea of guilty by the defendant. Before accepting such a plea, the court was required to notify him of his rights, including the maximum sentence prescribed by law. (See 107 Ill. 2d R. 402(a).) The court has no similar requirement to inform a defendant of potential sentences when, as here, he has pleaded not guilty. People v. Jones (1988), 174 Ill. App. 3d 794, 529 N.E.2d 66.

The instant case is more analogous to this court’s decision in Jones, cited in the preceding paragraph. During plea negotiations, the State in Jones offered to recommend a 30-year sentence for defendant if he pleaded guilty. Defendant rejected the offer. Following a jury trial, defendant was convicted of numerous offenses. The court then sentenced him to a term of 50 years in prison for the most serious of" those offenses, the remainder of the sentences to run concurrently. On direct appeal, this court vacated certain convictions and sentences for reasons not pertinent here but affirmed the remaining convictions and sentences. Jones, 108 Ill. App. 3d 880, 439 N.E.2d 1011.

The Jones defendant filed pro se a petition for post-conviction relief, alleging he was not advised by the court or his counsel that he could receive an extended-term sentence and that the first time he realized he could receive a 50-year sentence was at the sentencing hearing itself. He claimed he rejected the State’s offer of a 30-year sentence because he believed that was the maximum sentence he could receive. The trial court denied defendant’s petition.

On appeal, this court indicated the case did not involve the situation present in Walker where a defendant pleaded guilty and, in doing so, waived a number of his constitutional rights. Instead, it described the case as one in which the defendant rejected an offered plea and chose to fully exercise his constitutional rights but later complained about “being held to his choice” and “the sentence received.” (Jones, 174 Ill. App. 3d at 798, 529 N.E.2d at 69.) In affirming the trial court’s decision, this court concluded the court was not obligated to inform a defendant who pleaded not guilty of potential sentences, and defendant’s constitutional rights had not been violated due to the alleged failure of his counsel to advise him of the possibility of an extended term.

We specifically reject defendant’s argument that some explanation should be required of prosecutors whenever a sentence they recommend to the court after trial exceeds a sentence they were willing to agree to as a part of a plea agreement. The imposition of such a requirement could seriously damage the process of plea bargaining, a process which has been specifically approved by both the United States Supreme Court and the Illinois Supreme Court and which may underlie as much as 80% of criminal convictions in this State. Of course defendants are going to be offered an incentive to plead guilty, usually by way of a reduced sentence. There are not many defendants who plead guilty solely to facilitate the criminal justice system. The offering of this incentive is neither improper nor any evidence of prosecutorial vindictiveness.

Citing People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, defendant makes a related argument that he is somehow entitled to know precisely what the prosecutor will recommend if a plea agreement is turned down. We find no support in Richardson for this argument, and we reject it, noting that we see no legal difference between a prosecutor’s post-conviction sentence recommendation that is one year greater than that offered as part of a plea agreement and a post-conviction recommendation that is 30 years greater. In so noting, we emphasize that prosecutors do not sentence, they just recommend; trial courts are the sentencing bodies, and they are free to accept or reject, as they see fit, any' sentencing recommendations, whether made by the prosecutor or by defense counsel. In the absence of a plea agreement which the court has decided to accept, no recommendation by any counsel is in any way binding upon the court.

Defendant was free to accept or reject the State’s offer. He voluntarily chose the latter alternative with the inherent risk of potential increased sanctions associated with it. He should now be held to his choice.

Finally, defendant contends the trial court failed to adequately consider the applicable statutory mitigating factors in sentencing him. He points to a comment made by the trial court during sentencing that it was “difficult to find mitigating factors that would favor” the defendant. He claims this comment was erroneous because two statutory mitigating factors were, in fact, applicable to his case, namely (1) his criminal conduct neither caused nor threatened serious physical harm to another; and (2) he did not contemplate his criminal conduct would cause or threaten serious physical harm to another. Ill. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.1(a)(1), (a)(2).

The failure of a court to consider applicable statutory factors in mitigation of a defendant’s sentence can result in a vacatur of the sentence and the cause being remanded for resentencing. (People v. Cooper (1986), 146 Ill. App. 3d 596, 497 N.E.2d 157.) However, the comments made by the trial court here did not definitively state it found no mitigating factors which were applicable and, hence, do not show a complete failure by the court to consider the above-mentioned factors.

For the foregoing reasons, the judgment of the circuit court of Coles County is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD STEPHENSON, Defendant-Appellant.
    Fourth District
    No. 4—89—0708
    Opinion filed June 7, 1990.

      Richard D. Frazier, D. Peter Wise, and Michael B. Metnick, all of Met-nick & Barewin, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and J.A.C., Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals his sentence for attempt (criminal sexual as sault). We affirm.

On August 22, 1989, defendant was charged by information with two counts of criminal sexual assault in violation of section 12—13(a)(2) of the Criminal Code of 1961 (Criminal Code). (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(2).) A preliminary hearing was held on October 24, 1989, at which George Bengel, the program coordinator for the Jacksonville Area Association for Retarded Citizens (JAARC), testified that the victim was a 23-year-old, mentally retarded woman who lived at a home run by JAARC. Bengel also testified that defendant was a “relief home manager” who supervised retarded persons living at a JAARC home. On August 14, 1988, a “home manager,” Ron Cooley, found defendant and the victim naked together on a bed. Defendant later confessed to having sexual intercourse with the victim.

Bengel also testified, without objection, that he had been advised that the victim’s approximate mental age was three to five years old. Later at the hearing, the State again asked Bengel about the victim’s mental age:

“Q. [By prosecutor:] Now, you’ve stated before that you have learned [the victim] has been diagnosed as having a mental age of three to eight years old?
A. [By Bengel:] Yes.
Q. Have you had a chance to be around young children before?
A. Yes.
Q. And does that appear to you the way [victim] acts?
[Defense attorney]: Objection; That’s pure speculation.
THE COURT: Overruled.
Q. Does that appear to you the way [the victim] acts?
A. Yes.”

Defense counsel subsequently cross-examined Bengel, but failed to question him about the diagnosis of the victim’s mental age, or Bengel’s opinion that he believed the victim acted like a young child. The court found probable cause to exist, and defendant subsequently entered a plea of not guilty.

On January 9, 1989, defendant agreed to plead guilty to attempt (criminal sexual assault) in violation of sections 8—4(a) and 12—13(a)(2) of the Criminal Code. (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4(a), 12—13(a)(2).) During the change of plea hearing the court took judicial notice of the testimony presented at the preliminary hearing, including the testimony concerning the victim’s mental age. The court asked defense counsel if he had any objection to this judicial notice, and defense counsel replied, “No, no objection.” The testimony presented at the preliminary hearing became the factual basis for defendant’s guilty plea.

On May 4, 1989, a sentencing hearing was scheduled, but defendant’s motion to strike the victim-impact statement and police report was heard instead. One of defendant’s complaints concerned a statement in the police report, which referred to the victim’s mental age as being three to five years. The court noted that the victim’s mental age had been made part of the factual basis for the plea through testimony by a JAARC representative and denied the motion to strike the statement.

On July 21, 1989, a sentencing hearing was held at which defendant presented evidence in mitigation. Defendant first presented Fred Hammond, the director of chaplains and volunteer services at the Jacksonville Development Center. Hammond had counseled defendant several times following defendant’s arrest and had learned that defendant was “mildly on the borderline of retardation” and had an abnormally large sexual drive. Hammond further testified that he believed defendant’s sexual drive had been diminished significantly through a synthetic progesterone (Depo-Provera) treatment program.

After several other witnesses, including defendant’s wife, defendant called Dr. Phillip Bornstein, a psychiatrist who had examined defendant for the purpose of supplying the trial court with sentencing information. Dr. Bornstein was of the opinion that defendant has very low-normal or borderline intelligence and a “much higher than average” sexual drive, shows remorse for his act, and is nonviolent. Dr. Bornstein concluded that the only way to prevent this type of incident from recurring would be to permanently incarcerate defendant in a facility without women. However, Dr. Bornstein also suggested less restrictive ways to treat defendant, including counseling with Dr. Hammond and the progesterone treatment. Dr. Bornstein noted a sentencing alternative used in Springfield, Illinois, that consisted of a brief period of incarceration followed by counseling and progesterone treatments. Dr. Bornstein was not in favor of a long period of incarceration, but Dr. Bornstein is in general opposed to incarceration and retributive punishment of sex offenders.

The State presented no witnesses at the sentencing hearing, but argued that a term of imprisonment was necessary to punish the defendant and deter him and others from committing similar crimes, especially since the community in which defendant lived, Jacksonville, had a large population of disabled individuals. The defense -urged the court to follow Dr. Bomstein’s suggestion and sentence defendant to a brief period of incarceration, followed by probation and continued counseling and progesterone treatments.

The court sentenced defendant to six years’ imprisonment and gave a detailed explanation. The court gave considerable weight to Dr. Bornstein’s testimony, but noted that defendant was a “sexual opportunist,” whose increasing age and progesterone treatment would not absolutely guarantee the diminution of his sex drive. Progesterone •treatment is controversial medication under the facts of this case as the injections are mainly successful in the treatment of pedophiles. The court also noted defendant’s lower than normal mental ability and the fact that both defendant and the victim initiated the sexual contact at different times. Finally, the court noted that defendant had been a successful father, had been married for 30 years, was regularly employed, and was very remorseful.

The court then went through the list of statutory aggravating factors as listed under section 5—5—3.2 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2). The court noted the first statutory factor, that defendant’s conduct caused or threatened serious harm (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(1)), applied in the instant case. The court inferred that anyone with a mental age of three who had been put through this situation would suffer great emotional harm. The court was quick to note that it was not referring to physical harm. The court also found the seventh statutory factor to apply, i.e., the need to deter defendant and others from committing the same crime (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(7)). The court noted the large community of mentally handicapped people in Jacksonville and stated that general deterrence was an important factor in this case.

The court then considered the ninth statutory factor, that the offense was committed against a physically handicapped individual (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(9)). The court noted that while the victim did not have a physical handicap, the victim was mentally handicapped. The court took the victim’s mental handicap into consideration “probably in the abuse of trust areas.” The court went on to consider the thirteenth statutory factor, that defendant held a position of trust or supervision in relation to a victim under 18 years of age (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(13))—the court initially suggested it considered this as an aggravating factor.

The court then considered the statutory factors in mitigation as listed in section 5—5—3.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.1). The court placed great weight on the second statutory factor, that defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.1(a)(2)). However, the court believed defendant knew his conduct was wrong. The court also found the ninth and tenth statutory factors in mitigation applicable, that defendant had the character and attitude that he would be unlikely to commit another crime, and that defendant was particularly likely to comply with terms of probation. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—5—3.1(a)(9), (a)(10).) The court rejected all other statutory mitigating factors, and specifically rejected the seventh, that defendant’s criminal conduct was the result of circumstances unlikely to reoccur (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.1(a)(7)). The court found that defendant needed to be in a controlled environment, and noted that, in prison, defendant would continue to receive progesterone treatments and counseling. The court concluded that the main aggravating factor was the abuse of trust, given the fact that defendant initiated some of the incidents. The court explained that the length of the sentence was due to retribution and deterrence, and not rehabilitation, although rehabilitation was a part of the sentence.

After the court pronounced sentence, defense counsel asked to make a record for appeal and objected to several of the factors the court relied on in fashioning its sentence. The defense first objected to the court’s use of the victim’s mental handicap. Defendant argued that the ninth statutory factor, that the victim has a physical handicap, does not include mental handicap. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(9).) The court noted that it did not rely on the ninth statutory factor, but instead relied only on the victim’s mental handicap.

Defendant also objected to the court’s use of section 5—5—3.2(a)(13) as an aggravating factor, the abuse of trust. Defendant stated that the court improperly relied on subsection (13) because the victim was over the age of 18. The court admitted “rewriting” subsection (13), and stated that whether the legislature had meant biological age or mental age was up to a higher court to decide. The court continued:

“I would be shocked and appalled if this court couldn’t consider the mental age of this victim at three as being an aggravating factor, no matter what her age may be, whether it’s 22 or 50. And if [subsection (13)] doesn’t provide for an aggravating factor, I find that’s a salient factor anyway, whether or not the general assembly considered it. It’s a factor that is involved implicitly in this particular offense. It’s one of the elements of the offense, also, that the, she could not consent because of her mental age, and the court so considers it.”

Defendant filed a timely motion to reconsider, which was heard on August 29, 1989. Defendant orally amended his motion to argue that the court could not consider the victim’s mental handicap as an aggravating factor because it was inherent in the offense. The court acknowledged that this was in fact an element in the offense, but also considered it an aggravating factor for the reason that the victim could not defend herself because, mentally, she was a little child.

The court denied defendant’s motion to reconsider, and defendant filed a timely notice of appeal. On appeal, defendant argues (1) the court erred in considering the victim’s mental handicap as an aggravating factor; (2) the court erred and violated defendant’s due process rights by finding as an aggravating factor that the victim’s mental age was approximately that of a three-year-old; (3) the trial court erred in finding as an aggravating factor that defendant held a position of trust or supervision in relation to a victim under 18 years of age; and (4) the trial court failed to consider the rehabilitative potential of defendant, and placed excessive emphasis on retribution and deterrence.

Defendant’s first issue on appeal is whether the trial court erred in considering the victim’s mental handicap as a factor in aggravation. The court used the victim’s mental handicap three times in discussing the factors in aggravation: (1) defendant’s conduct caused or threatened serious harm because of the victim’s young mental age; (2) the act was committed against a mentally handicapped individual; and (3) defendant abused his trust and the victim had an approximate mental age of three years.

Defendant first argues that the victim’s mental handicap was an element of the offense, and thus could not be used as an aggravating factor. We disagree. A factor implicit in the offense for which a defendant has been convicted generally cannot be used as an aggravating factor in sentencing for that offense absent a clear legislative intent to accomplish that result. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429.) However, the fashioning of a sentence depends upon many factors including “ ‘ “the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant.” ’ ” (People v. Saldivar (1986), 113 Ill. 2d 256, 268-69, 497 N.E.2d 1138, 1143, quoting People v. Hunter (1981), 101 Ill. App. 3d 692, 694, 428 N.E.2d 666, 668.) Defendant argues Ferguson, and People v. White (1986), 114 Ill. 2d 61, 499 N.E.2d 467, make it “unmistakably clear” that a sentencing court cannot consider the extreme disability of the complainant when that disability is an element of the offense. However, the victim’s severe mental retardation is not an element of the offense for which defendant was convicted and sentenced. Defendant was convicted of attempt (criminal sexual assault) in that he attempted to knowingly commit an act of sexual penetration upon a victim “unable to give knowing consent.” The victim’s severe mental retardation involves the nature and extent of the offense. Although the trial judge was incorrect in his assertion that the victim’s severe mental retardation was implicit in and an element of the offense, he properly considered it as pertaining to the nature and extent of the offense. As the court noted, the victim, although 23 years old, was as a practical matter a little child, unable to defend herself because of her severe mental retardation.

The two cases defendant relies on, Ferguson and White, are factually distinguishable from the present case as they both involved enhanced-penalty offenses in which the aggravating element of the offense was the age of the victim. In Ferguson, the supreme court held that the age of a victim cannot be considered when enhancing the defendant’s sentence where the penalty for the underlying offense had already been enhanced based upon the age of the victim. Similarly, in White, the supreme court held the general fact that a victim is a child under the age of 13 could not be considered as an aggravating factor in sentencing for aggravated battery of a child, as a necessary element of that offense is that the victim be less that 13 years of age (Ill. Rev. Stat. 1983, ch. 38, par. 12—4.3). In the present case, defendant was not convicted of an enhanced-penalty offense which had as an aggravating element the victim’s severe mental retardation and mental age. Thus, it was proper for the court to rely on the victim’s severe mental handicap and approximate mental age as factors in aggravation.

Defendant also argues the court erred in using the victim’s mental handicap to find that his conduct caused or threatened serious harm. Defendant believes serious harm is inherent in the offense of attempt (criminal sexual assault) and that, if the court was correct in its use of the threat of harm, any victim who could not give knowing consent would suffer serious harm from a defendant’s conduct. Defendant further argues that if the harm or threat of harm can be considered, the risk of harm must be greater than that inherent in almost all of this type of crime. People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254.

It is true that a court may not consider an aggravating factor which is the end result and implicit in the offense for which the sentence is imposed. However, a court may properly consider as a factor in aggravation harm which is not the end result of and implicit in all similar offenses for which sentence is imposed. (People v. Ehrich (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137 (holding that a circuit court may consider as a factor in aggravation the degree of psychological harm caused a victim even when serious bodily harm is arguably implicit in the offense of which the defendant was found guilty).) In the instant case, the court could reasonably consider the psychological harm to the victim because it was not the end result of or implicit in the offense of attempt (criminal sexual assault). It may also be said that the risk of harm is much greater here than in almost all other attempted criminal sexual assaults due to the victim’s severe mental retardation and approximate mental age of three.

Defendant’s third claim on appeal is that he was deprived of due process of law in violation of the fourteenth amendment of the United States Constitution because the court found, the victim’s mental age to be three years old and used it as an aggravating factor. Defendant claims that the trial court improperly relied on the victim’s mental age because the only evidence to support the finding was introduced at the preliminary hearing by George Bengel, the program coordinator for the JAARC. Defendant claims that Bengel provided no basis for his statement.

A sentencing judge is not bound by normal evidentiary rules when determining factors in aggravation and mitigation, but the evidence must be relevant and reliable. (People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451.) Accuracy and reliability of evidence are tested by the rigor of cross-examination. (People v. Kirk (1978), 62 Ill. App. 3d 49, 52-53, 378 N.E.2d 795, 798; see also People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Defendant twice failed to object to Bengel’s statements concerning the victim’s approximate mental age. Defendant only objected to Bengel’s testimony that he believed the victim appeared to act like a child. Moreover, defendant had the opportunity to cross-examine Bengel during the preliminary hearing concerning the victim’s mental age, but chose not to do so.

Defendant also makes an issue of the fact that Bengel first testified he had been advised the victim’s mental age was approximately three to five years, but later answered affirmatively when asked by the State if the victim had been diagnosed as having a mental age of between three to eight years. This discrepancy, probably no more than a misstatement, could have been clarified under cross-examination, which defendant failed to do.

Most important here is the fact that at defendant’s guilty plea hearing, the trial court took judicial notice of Bengel’s testimony concerning the victim’s mental age. The court asked defense counsel if he had any objection to this, and defense counsel replied, “No, no objection.” The testimony became part of the factual basis for the defendant’s guilty plea without objection by defense counsel.

The court later offered defendant the opportunity to present evidence to discredit Bengel’s testimony at the hearing on the motion to strike the victim-impact statement and police report. The court informed defendant that he could subpoena witnesses, such as the police officer who wrote the victim’s approximate mental age in his report. Defendant could have asked the officer where he received the information and questioned its reliability. Defendant failed to do this. Because defendant failed to object to Bengel’s testimony during the preliminary hearing, failed to cross-examine Bengel concerning the victim’s mental age, and failed to object to this testimony becoming the factual basis for defendant’s plea, we find no error in the court’s use of the victim’s mental age as a factor in aggravation.

Defendant does cite several cases as examples of courts remanding for resentencing when the sentencing court considered unreliable information. (People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285; People v. Vaughn (1978), 56 Ill. App. 3d 700, 371 N.E.2d 1248; People v. Hammock (1979), 68 Ill. App. 3d 34, 385 N.E.2d 796.) However, none of the cases cited have the additional facts of the instant case, i.e., the failure to object to testimony and the failure to object to testimony becoming part of the factual basis for defendant’s guilty plea.

Defendant’s fourth issue on appeal is whether the court erred in relying on the statutory aggravating factor in section 5—5—3.2(a)(13), that defendant held a position of trust' or supervision in relation to the victim and the victim was under the age of 18. Defendant claims the court erred for several reasons: (1) attempt (criminal sexual assault) is not a crime listed in subsection (13) that would allow its use as an aggravating factor; and (2) the victim was not under the age of 18. We need not discuss defendant’s assertions because the court did not rely on subsection (13) as an aggravating factor. Although the court at first incorrectly stated that it relied on the factor set forth in subsection (13), it later clarified its position by stating that it relied upon the breach of trust and the victim’s severe mental handicap, and not statutory factor in subsection (13). A trial court is not bound by the usual rules of evidence but may search anywhere within reasonable bounds for other facts tending to aggravate or mitigate the sentence. (People v. Allen (1983), 119 Ill. App. 3d 845, 457 N.E.2d 77.) The breach of trust defendant displayed and the severe mental handicap of the victim are certainly proper factors to consider in aggravation.

Defendant’s final argument is that the trial judge failed to consider his rehabilitative potential and placed excessive emphasis on retribution and deterrence in fashioning his sentence. Defendant cites several cases as examples of appellate courts reversing on sentences and insists that appellate courts now afford less deference to the trial court’s discretion in sentencing. (See, e.g., People v. O’Neal (1988), 125 Ill. 2d 291, 531 N.E.2d 366; People v. Smith (1989), 178 Ill. App. 3d 976, 533 N.E.2d 1169; People v. Colter (1989), 181 Ill. App. 3d 392, 536 N.E.2d 1372; People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859; People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.) Defendant urges us to follow this new “willingness” of appellate courts to afford less deference to the sentence imposed when a trial court fails to place sufficient emphasis on the defendant’s rehabilitative potential, and to reverse his sentence. We decline.

Imposition of a sentence is a matter of judicial discretion and the standard of review used to determine whether a sentence is excessive is whether the trial court abused that discretion. (O’Neal, 125 Ill. 2d 291, 531 N.E.2d 366.) The reason for this standard is that the trial judge is normally in a better position to consider credibility, demeanor, general moral character, mentality, social environment, habits, and age of the defendant. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Thus, a reviewing court will not substitute its judgment for that of a trial court merely because it would have balanced the appropriate sentencing factors differently. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Defendant argues that while the State presented no evidence in aggravation, he presented a great deal of evidence in mitigation, including his (1) history of employment; (2) good family life; (3) lack of criminal record; (4) diabetes and chronic back pain; (5) low intelligence; (6) show of remorse; and (7) willingness to accept treatment and counseling. Defendant also argues that the court refused to consider the progesterone injections and his potential for rehabilitation. Defendant’s assertion is incorrect, however, as the judge considered these factors, but accorded them less weight than the factors in aggravation, especially the abuse of trust. The court also had serious doubts as to whether the progesterone treatment would be successful in defendant’s situation, as such treatment is normally used in the treatment of pedophiles.

Defendant further argues that he is in a similar situation as the defendants in Smith and Harris and should therefore be resentenced. In Smith, the defendant, a 17-year-old mentally retarded youth with no criminal history, was sentenced to 30 years for murder. The only apparent aggravating factor present was the need to deter others. The appellate court believed that the sentencing court failed to consider the mitigating factors present, including the defendant’s character and attitude, which indicated he was unlikely to commit another crime. Because of this, the Smith court remanded the case for re-sentencing. In the instant case, however, it is clear that there is more than one aggravating factor, and the court considered all the mitigating factors present as well as defendant’s rehabilitative potential. The court simply held the firm belief that defendant needed to be incarcerated for a period of time to ensure he would not commit a similar crime.

In Harris, the defendant’s sentence for aggravated criminal sexual assault was found to be in gross disparity with sentences imposed in factually similar cases. In fact, the defendant in Harris was given a longer sentence than even more serious cases. Because of this, the appellate court “cautiously” found that the sentencing court erred in failing to consider the defendant’s substantial rehabilitative potential. (Harris, 187 Ill. App. 3d at 844, 543 N.E.2d at 865.) Defendant offers no factually similar cases which would show a “gross disparity” between his sentence and the sentences of others convicted of similar crimes.

Attempt (criminal sexual assault) is a Class 2 felony (Ill. Rev. Stat. 1987, ch. 38, pars. 12—13(b), 8—4(c)(3)), which carries a sentencing range of not less than three nor more than seven years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(5)). Defendant’s sentence was within the range for attempt (criminal sexual assault), and absent an abuse of discretion, the sentence will be upheld.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


text:
    MARK VERTICCHIO, Plaintiff-Appellant, v. DIVERNON COMMUNITY UNIT SCHOOL DISTRICT NO. 13 et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0833
    Opinion filed May 31, 1990.

      R. Mark Mifflin, of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, John M. Hynes, and Richard R. Winter, of counsel), for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Mark Verticchio appeals the circuit court’s order granting summary judgment for the defendants Divernon Community Unit School District No. 13 (School District), Thomas Veihman, superintendent of schools, and Joseph Klein, president of the school board. The issue in this case is whether the defendants violated section 24—11 of the School Code (Code) in the procedure they used in dismissing the plaintiff from his teaching position. (Ill. Rev. Stat. 1987, ch. 122, par. 24—11.) We hold they did not, and we affirm.

Plaintiff was employed by defendant School District and was serving his second year as a full-time probationary nontenured teacher. Prior to the March 8, 1989, school board meeting, Veihman, according to his affidavit, informed plaintiff and his attorney, Rick Verticchio, that Veihman intended to recommend plaintiff’s employment be terminated. The reasons given were plaintiff’s failure to establish and follow orderly lesson objectives, and failure to maintain classroom noise at an appropriate level. No notice to this effect had yet been mailed to the plaintiff.

On March 8, 1989, the school board meeting was held in which plaintiff was granted a hearing, held in closed session. During this hearing, plaintiff submitted a written memorandum explaining his position on the issues. After their presentation, the plaintiff and his attorney were excused and the board went into executive session for approximately 15 minutes. According to the affidavit of school board president Klein, during this executive session, the board discussed the matter, the superintendent informed the board of the above-mentioned reasons for the dismissal, and recommended plaintiff be dismissed. At this time, the superintendent presented to the board a proposed resolution dismissing plaintiff as a teacher. Also presented to the board at this time was the letter which was to be sent to plaintiff, informing him of the dismissal, and which had the words “exhibit A” printed at the bottom of the page. The resolution stated plaintiff was to be dismissed, and directed the president and the secretary of the board of education to execute and mail to plaintiff the form attached as exhibit No. A. The resolution gave no specific reasons for the dismissal. The letter exhibit No. A, however, contained both reasons discussed previously for the dismissal.

The board then went into open session. The superintendent recommended the board adopt the termination resolution. The superintendent handed the proposed resolution to the board president, seated next to him. This resolution did not have the letter exhibit No. A attached to it. The resolution was then passed unanimously during this open session. Plaintiffs attorney asked to examine the resolution, then pointed out exhibit No. A was not attached. The superintendent removed the exhibit from the folder in front of him and showed it to the president of the school board. There is no dispute that exhibit No. A was then sent to plaintiff by certified mail and that plaintiff received the letter no less than 60 days prior to the end of the school year.

On June 23, 1989, plaintiff filed a complaint, specifically alleging the method of dismissal was a violation of section 24—11 of the Code. (Ill. Rev. Stat. 1987, ch. 122, par. 24—11.) On October 10, 1989, the trial court entered its judgment order granting defendants’ and denying plaintiff’s motion for summary judgment in that defendants had complied with section 24—11 of the Code in the dismissal of a nontenured teacher.

Section 24—11 of the Code states in part:

“Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by certified mail, return receipt requested by the employing board at least 60 days before the end of such period.” (Ill. Rev. Stat. 1987, ch. 122, par. 24—11.)
“Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and that the movant is entitled to judgment as a matter of law.” (Cronic v. Doud (1988), 168 Ill. App. 3d 665, 668, 523 N.E.2d 176, 178.)

By examining the affidavits in the record, there is no dispute a written notice of termination was sent by certified mail to the plaintiff before the 60-day limitation had passed, and this notice included the specific reasons for the dismissal. The defendants’ affidavit stated the board saw this notice and was aware of its contents. The board also heard the superintendent recommend termination based on these reasons.

The plaintiff argues this discussion as to the reasons of his termination took place in closed session and, therefore, the board’s alleged silent knowledge of these reasons is irrelevant and contrary to the Open Meetings Act of Illinois (Act) (Ill. Rev. Stat. 1987, ch. 102, pars. 41 through 46). In a dismissal of a school teacher, the fact a decision maker, such as a school board member, had taken a position prior to a hearing does not disqualify him as a decision maker and “[tjhere is a strong presumption of honesty and integrity in those serving as adjudicators.” (Grissom v. Board of Education of Buckley-Loda Community School District No. 8 (1977), 55 Ill. App. 3d 667, 673, 370 N.E.2d 1298, 1303.) Therefore, even if such discussions took place in closed session, this does not make such discussions or knowledge suspect or irrelevant. In Grissom, a case of a dismissal of a tenured teacher, the board deliberated on this matter in closed session, and upon returning to open session, a roll call vote was taken. This roll call vote was held to be a sufficient final action even though full discussion of the matter took place in closed session. (Grissom, 55 Ill. App. 3d at 675, 370 N.E.2d at 1304.) Thus, according to Grissom, simply because discussion of the reasons for dismissal took place in closed session does not make such discussions irrelevant or ineffective. This being the case for the dismissal of a tenured teacher, it should be no less a case for a nontenured teacher.

Section 2 of the Act clearly states “[t]his Section does not prevent any body covered by this Act from holding closed meetings to consider information regarding *** dismissal of an employee.” (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Therefore, the discussion regarding the reasons for Mark’s dismissal could effectively take place in closed session without violating this Act. Further, in order to claim a violation of the Act, civil action must take place “prior to or within 45 days after the meeting alleged to be in violation of this Act.” (Ill. Rev. Stat. 1987, ch. 102, par. 43(a).) Since the meeting in which the alleged violation took place was held on March 8, 1989, and the first complaint by the plaintiff was filed on June 23, 1989, more than 45 days had passed. Accordingly, any issue regarding a purported violation of the Act has been effectively waived.

We next consider whether the action of the school board violated section 24—11 of the Code. The plaintiff argues the notice was ineffective, since the board discussed the reasons for dismissal in closed session only. The plaintiff further argues that since the specific reasons for dismissal were not attached to the resolution, the board’s action in open session was ineffective, and not a final action. Therefore, plaintiff argues, those who signed the notice later sent to the plaintiff were without the authority of the board to do so, making such notice ineffective and violating the requirements set by the Code.

The mode of dismissing teachers is expressly regulated by statute and must be substantially followed if dismissal is to be effective and valid. (People ex rel. Head v. Board of Education of Thornton Fractional Township South High School District No. 215 (1981), 95 Ill. App. 3d 78, 81, 419 N.E.2d 505, 507.) While a tenured teacher is entitled to notice, hearing, and a bill of particulars, the nontenured teacher need only be provided with a specific reason for his dismissal. (Howard v. Board of Education of Freeport School District No. 145 (1987), 160 Ill. App. 3d 309, 313, 513 N.E.2d 545, 547.) Notice of dismissal stating specific reasons, given by registered mail at least 60 days before the end of the probationary period, is all that is required. Seim v. Board of Education of Community Unit District No. 87 (1974), 21 Ill. App. 3d 386, 392, 315 N.E.2d 282, 287.

Plaintiff cites no cases, and the statute does not require the reasons for dismissal be read in public at open session in order for the notice to be effective. In Pennell v. Board of Education of Equality Community Unit School District No. 4 (1985), 137 Ill. App. 3d 139, 484 N.E.2d 445, a superintendent’s recommendation stating simply “[e]mploy a half-time librarian,” thereby reducing plaintiff from a full-time to a part-time librarian, was held sufficient to constitute board action as to comply with section 24—11 of the Code. (Pennell, 137 Ill. App. 3d at 142, 484 N.E.2d at 447-48.) In Grissom, a discussion of termination reasons made during closed session and simple roll call taken during the open meeting was held to comply with the Code requirements of a final board action. (Grissom, 55 Ill. App. 3d at 675, 370 N.E.2d at 1304.) Even a board’s tentative resolution to dismiss a teacher made in closed session, after which a final vote was taken in open session, with no public reading as to the reasons behind the decision, was held to be valid and comply with the Code. (Davis v. Board of Education of Farmer City-Mansfield Community Unit School District No. 17 (1978), 63 Ill. App. 3d 495, 498-99, 380 N.E.2d 58, 61.) None of the above cases indicate a public reading of the reasons for termination is necessary or that such reasons need to be attached to the resolution in order for the action to comply with the Code.

Plaintiff cites Koerner v. Joppa Community High School, District No. 21 (1986), 143 Ill. App. 3d 162, 492 N.E.2d 1017. In Koerner, the board voted to change the closing date of the school from May 31 to May 23, 1984. Notice of dismissal was received by the plaintiff on April 2. The defendant school district in Koerner argued that since the board had subsequently voted to declare May 24 through 31 as school holidays, the prior action changing the closing date did not constitute a change of the original school calendar and the term did not end until May 31. The Koerner court held that since the board never rescinded the original order to move the closing date, or change the date back to May 31, the May 23 date was held to be the closing date of the school year, and the notice was held to be untimely. (Koerner, 143 Ill. App. 3d at 166-67, 492 N.E.2d at 1019-20.) Plaintiff argues the Koerner school board intended to reestablish the final day of the school year back to the May 31 date by adding on the holidays and such action was held to be a nullity. Plaintiff further argues that as in Koerner, while this board of education may have intended to pass an effective resolution, its action became a nullity because the resolution failed to state the specific reasons for dismissal, thereby making it ineffective.

Plaintiffs analogy to Koerner fails for two reasons. First, the Koerner dismissal was ineffective due to a violation of an express provision of the Code, the 60-day notice requirement. Unlike Koerner, failure to state reasons for termination in the termination resolution is neither an express violation of the statute, nor contrary to case law. Second, the Koerner court did not base its holding on the board’s alleged intention to extend the closing date back to May 31 by declaring school holidays. Rather, the court stated its decision was based on the fact the board could have changed the closing date back to May 31, but neglected to do so. (Koerner, 143 Ill. App. 3d at 166, 492 N.E.2d at 1019.) Koerner, therefore, is distinguishable on its facts, and the attempt to analogize Koerner to this case is inappropriate.

Plaintiff argues that the president and the secretary of the school board delivered notice without authority of the school board. For this he cites Bessler v. Board of Education of Chartered School District No. 150 (1973), 11 Ill. App. 3d 210, 296 N.E.2d 89. While the authority to hire or fire a teacher may not be delegated to school employees, such as a superintendent (Bessler, 11 Ill. App. 3d at 212, 296 N.E.2d at 91), Klein was acting in his capacity as president of the board. In Bessler, the personnel director of the school board issued a timely notice, but did so before the board took its untimely action, thereby making the dismissal ineffective. (Bessler, 11 Ill. App. 3d at 213, 296 N.E.2d at 90.) In this case, the notice was mailed after the action of the board and was signed by the president and the secretary of the board. Therefore, plaintiff’s argument that such action was taken without the authority of the board is without merit.

For the foregoing reasons, the order of the trial court granting summary judgment for the defendants is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J, concur.