author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY W. KENDALL, Defendant-Appellant.
    Second District
    No. 2—88—0766
    Opinion filed May 13, 1991.
    Rehearing denied June 19, 1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Anthony Kendall, pleaded guilty to the offenses of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4(a), 9 — 1(a)(1)) and armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), and he was sentenced to 35 years’ imprisonment. The trial court denied defendant’s motion to reconsider the sentence or, in the alternative, to withdraw his guilty plea. On appeal, defendant contends that (1) the trial court failed to consider the proper factors in determining the sentence, and (2) defendant deserves a rehearing on his motion to withdraw his guilty plea because his attorney did not comply with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)).

According to defendant’s statements at the guilty plea hearing and the victim’s testimony at the sentencing hearing, on March 2, 1987, defendant and codefendant, Ronnie Carroll, met the victim, Daniel Foren, at a gas station. Defendant and Carroll helped Foren pull his car out of a ditch, and Foren agreed to give the two men a ride somewhere. During the ride, Carroll stabbed or cut Foren in the back of the head and told him to stop the car. When Foren tried to get out of the car, Carroll stabbed him and defendant hit him with a pipe. As he ran from the car, Foren heard Carroll tell defendant, “Kill him, don’t let him get away.” When the men caught Foren, they continued to stab and beat him. According to defendant, Carroll asked him if he (Carroll) should kill Foren, and defendant said no. Apparently, when Foren passed out the men stole his clothes ánd $28. The victim was cut on the face, hand, back and head and suffered a broken arm and hand.

Defendant entered a plea of guilty to the charges of armed robbery and attempted murder. At the sentencing hearing, the victim testified about the incident and his injuries. Defendant’s great-aunt testified that defendant’s stepfather had physically abused defendant. Defendant ran away from home when he was young, and the court gave the great-aunt custody of defendant for two or three years. When defendant was in high school, he got into drugs. The great-aunt believed that if defendant could get away from drugs and alcohol he could go far. Defendant’s other aunt testified that she felt defendant got involved in this incident because of drugs.

Defendant was 21 years old at the time of the offense. The presentence investigation report indicates that while defendant was a minor he was adjudicated a delinquent for the offenses of theft, attempted escape and battery, and he was committed to the Department of Corrections. As an adult, defendant was convicted of theft in 1983 and sentenced to one year of probation. On January 21, 1988, defendant was arrested for a 1986 burglary. On that date defendant was also charged with transporting alcohol and obstructing a peace officer. He was convicted of the latter offenses and fined, but the burglary charge was still pending at the time of this sentencing hearing. Defendant has been using drugs since he was seven and drinking alcohol since he was 12; he is a regular user of marijuana, LSD, heroin, cocaine and speed. Defendant told the presentence investigator that he was under the influence of several drugs and a large amount of alcohol at the time of the offense.

The trial court found that the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and that the extended-term provision of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(2)) was applicable. The court sentenced defendant to 35 years’ imprisonment. Defendant filed a motion to withdraw his guilty plea or, in the alternative, to reduce the sentence, and the motion was denied. Defendant appeals.

Defendant contends that he deserves a rehearing on his motion to withdraw his guilty plea because his attorney failed to examine the report of proceedings of the plea of guilty as required by Supreme Court Rule' 604(d) (134 Ill. 2d R. 604(d)). Rule 604(d) governs appeals from judgments entered on pleas of guilty. The rule provides that no such appeal will be taken unless defendant files a motion to withdraw his guilty plea within 30 days of sentencing. The rule sets forth the requirements for such a motion and the duties of the court and defense counsel in regard to such a motion. As relevant here, Rule 604(d) provides:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant *** to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” (134 Ill. 2d R. 604(d).)

In this case, defense counsel filed the required certificate, but she admitted to the court during the hearing on the motion to withdraw the guilty plea that she had not examined the report of proceedings; she had only reviewed her notes.

The rules adopted by the supreme court concerning criminal defendants and guilty pleas are rules of procedure and not suggestions; it is incumbent upon counsel and the courts alike to follow them. (People v. Wilk (1988), 124 Ill. 2d 93, 103.) The requirement that defendant’s attorney examine the court file and the report of proceedings reflects a concern that each defendant be assured adequate and proper representation on his motion to withdraw his guilty plea. (People v. Steinmetz (1982), 110 Ill. App. 3d 439, 441-42.) Because of the strict waiver requirements of Rule 604(d) (any issue not raised by the defendant in his motion to withdraw his guilty plea is deemed waived), fundamental fairness requires that the defendant have the assistance of counsel in preparing and presenting his motion. (People v. Ledbetter (1988), 174 Ill. App. 3d 234, 237-38.) Rule 604(d) sets forth defense counsel’s duties in this regard; here it is clear that counsel did not perform those duties. We conclude that, due to defense counsel’s failure to comply with Rule 604(d), the cause must be remanded to the trial court where defendant will be allowed to file a new motion to withdraw his guilty plea and allowed a hearing on the new motion. See People v. Hayes (1990), 195 Ill. App. 3d 957, 960-61.

Our analysis and interpretation of Rule 604(d) is consistent with our recent opinion in the case of People v. Dickerson (1991), 212 Ill. App. 3d 168, and consistent with recent rulings from other appellate districts in the cases of People v. Hancock (1991), 208 Ill. App. 3d 1092 (fourth district); People v. Vickery (1991), 207 Ill. App. 3d 574 (third district); People v. Johnson (1990), 207 Ill. App. 3d 122 (fourth district); and People v. Hayes (1990), 195 Ill. App. 3d 957 (fifth district).

Defendant has raised sentencing issues on appeal, also. We acknowledge that on remand it is possible that defendant may prevail on his motion to withdraw his guilty plea and his conviction and sentence may be vacated. We note that defendant did raise the issue of his sentence in the trial court by filing a motion to reconsider (see People v. Wallace (1991), 143 Ill. 2d 59), and for the sake of judicial economy, we will address the sentencing issues here. We conclude that the sentence imposed on defendant was proper, and, in the event that defendant does not prevail on his motion to withdraw his guilty plea, the sentence will stand.

Defendant contends that his sentence was excessive and should be reduced. It is well established that a trial court’s decisions in regard to sentencing are entitled to great deference and weight, and, absent an abuse of discretion, a sentence may not be altered on review. (People v. Felella (1989), 131 Ill. 2d 525, 541; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Defendant was convicted of two Class X felonies; the penalty for such offenses ranges from 6 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1.) As noted above, the trial court determined that the crime was accompanied by brutal or heinous behavior indicative of wanton cruelty and that the extended-term provision of the Code could be applied. Under this provision, defendant was eligible for a term of from 30 to 60 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(2).) Defendant does not take issue with the trial court’s findings concerning the brutal nature of the crime and the applicability of the extended term. Defendant’s 35-year sentence was on the low end of the extended-term range; his codefendant, Ronnie Carroll, was sentenced to 55 years’ imprisonment.

Defendant first contends that in determining his rehabilitative potential the trial court did not consider his youth, his family background of abuse, his lack of a significant criminal history, and the fact that he had been continuing his education while in jail for this offense.

All criminal penalties are to be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship (Ill. Const. 1970, art. I, §11) and to that end the trial court is required to consider defendant’s rehabilitative potential (People v. Brajcki (1986), 150 Ill. App. 3d 506, 515).

In determining defendant’s rehabilitative potential, the court focused on defendant’s criminal history. The court noted that as a juvenile defendant was sent to the Department of Corrections, which the court characterized as “the last stop in [the] juvenile court system,” and that defendant had attempted an escape. When defendant was on adult probation for theft, he did not report, left the jurisdiction and did nothing toward rehabilitation. The court also noted defendant’s recent conviction of obstructing a peace officer and the fact that defendant was out on bail on a burglary charge when he committed the instant offenses.

Admittedly, defendant had not been convicted of other major violent crimes; however, defendant’s experience with the justice system gave strong indications of a lack of rehabilitative potential. While his other crimes may not have been what defendant calls “significant,” his response to them and his attitude toward and failure to cooperate with the system were significant. As a juvenile, defendant had attempted escape; as an adult, he had violated probation and fled the jurisdiction; and he committed the instant offenses while out on bail on another charge. We cannot conclude that the trial court’s determination that defendant had very little rehabilitative potential was unsupported by the record.

Although the trial court may not have mentioned defendant’s age and educational background at the hearing, the court had reviewed the presentencing report and was aware of these facts. The court also was aware of and discussed defendant’s family background. Where mitigating evidence is before the court, it is presumed that the court considered that evidence absent some indication, other than the sentence itself, to the contrary. (People v. Abrego (1986), 142 Ill. App. 3d 973, 986.) The court is not required to set forth every reason or the weight given each factor considered in the sentencing decision. (Brajcki, 150 Ill. App. 3d at 515.) Moreover, the rehabilitation of the defendant is to be accorded no greater consideration than the seriousness of the crime (People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 556-57), and the crimes here were extremely serious: two Class X felonies committed in a brutal manner.

Defendant next contends that the trial court ignored the mitigating evidence that defendant was a chronic substance abuser and was under the influence of drugs at the time of the offense. We disagree.

At the sentencing hearing the trial court stated that it had reviewed the reports, exhibits, testimony, statements and arguments and considered them in light of the sentencing statutes. Among the reports was the presentence investigation report which discussed defendant’s drug and alcohol problem and a substance-abuse evaluation report from the Lake County Health Department, and the court discussed the substance-abuse report at the hearing. The court also noted that alcohol or drug addiction can be a mitigating factor insofar as it affects mental capacity, but that extensive, long-term substance abuse may negatively impact rehabilitative potential. These comments make it quite clear that the court did consider defendant’s drug and alcohol problems. As pointed out above, the court was not required to assign a weight or value to each factor considered. (Brajcki, 150 Ill. App. 3d at 515.) We again note that defendant was eligible for a 60-year sentence but received only a 35-year sentence.

Finally, defendant contends that the trial court considered two improper aggravating factors, specifically that defendant had received compensation for the offense and that he was out on bail for a prior felony at the time of this offense.

When listing the aggravating factors, the trial court said that the codefendants received compensation for the crime, apparently referring to the $28 they took from the victim. Where a defendant received compensation for committing the offense, the court may consider that factor in aggravation. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(2).) This section is intended to refer to a situation where the defendant receives remuneration other than proceeds from the crime itself, for example, where he was hired to commit the crime. (See People v. Conover (1981), 84 Ill. 2d 400, 405.) There is no reason to believe defendant was hired to commit this offense, and the trial court was incorrect when it concluded that it could consider compensation as an aggravating factor. However, the court mentioned compensation only once and very briefly at the beginning of the sentencing discussion, and our review of the record establishes that little, if any, weight was given to this factor. Remand for resentencing is not necessary where the record demonstrates that the weight placed on the improper sentencing factor was insignificant and did not result in a greater sentence. People v. Bourke (1983), 96 Ill. 2d 327, 333.

Defendant also complains that the trial court improperly considered the fact that defendant was out on bail for burglary when he committed the instant offense. Where a defendant committed an offense while he was out on bail for a prior felony and he was convicted of that felony, the court may consider that factor in aggravation. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(11).) In this case, although defendant was out on bail for burglary at the time of the offense, he had not been convicted of that offense at the time of this sentencing hearing. However, while the court did discuss the burglary charge here, it specifically pointed out that the charge was still pending and that defendant was presumed innocent of that offense. The court discussed the burglary charge only as it was relevant to defendant’s rehabilitative potential and not as a statutory factor in aggravation. As such, there was no error.

In light of the brutality of the crime and defendant’s limited rehabilitative potential, we conclude that defendant’s 35-year sentence was not an abuse of discretion.

As set forth above, the trial court’s denial of defendant’s motion to withdraw his guilty plea is reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

REINHARD, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS JUSTICE WOODWARD,

license: Public Domain

text:
    MARY M. BONIFAS RICE, Plaintiff-Appellant, v. MERCHANTS NATIONAL BANK, as Special Adm’r of the Estate of Darrell Hubbs, Defendant-Appellee.
    Second District
    No. 2—90—0895
    Opinion filed May 22, 1991.
    Rehearing denied June 19, 1991.

      WOODWARD, J., dissenting.
    William A. Delaney II, of Lindner, Speers & Reuland, P.C., of Aurora (George P. Lindner, of counsel), for appellant.
    Vincent Robertelli and Thomas C. Rueger, both of Giagnorio & Robertelli, Ltd., of Bloomingdale (Nancy J. Wolfe, of counsel), for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Mary Bonifas Rice, appeals from a jury verdict in the circuit court of Kane County which awarded her $48,000 in damages. The jury reduced the damages awarded to $32,000 after determining that plaintiff was responsible for 33.33% of her injuries. On appeal, plaintiff contends that the trial court erred: (1) in allowing into evidence the deceased’s toxicology report; (2) by permitting improper cross-examination of plaintiff concerning alcohol consumption, prior surgery, and pregnancies; (3) in instructing the jury on the statutory presumptions with respect to intoxication; and (4) in refusing to rule on her motion for summary judgment. In addition, plaintiff contends that the jury verdict finding her contributorily negligent was against the manifest weight of the evidence and that the jury disregarded proven elements of damages for her pain and suffering. We affirm in part, reverse in part and remand.

On January 10, 1989, plaintiff filed a complaint against defendant, the Merchants National Bank, as special administrator of the estate of Darrell Hubbs, seeking damages as a result of an automobile accident. The complaint alleged that Darrell Hubbs, the decedent, was driving an automobile in which plaintiff was a passenger and negligently caused the automobile to leave the road, causing a “violent collision.” Thereafter, defendant filed an affirmative defense alleging that plaintiff was responsible for some or all of her injuries because she chose to remain in decedent’s automobile even though she was aware that he was “intoxicated and/or under the influence of a drug.” The following facts were adduced at trial.

Plaintiff testified that she graduated from high school in 1981 and began working for an insurance company. Shortly thereafter, she got married, gave birth to a son, and moved to Virginia. In 1984, she and her son returned to Illinois and one year later her marriage was dissolved. In June 1988, plaintiff met decedent while she was bartending at Chanti’s restaurant. Plaintiff dated decedent four or five times before agreeing to accompany him on a trip to Eastern Illinois University in Charleston. Decedent did not drink any alcohol or have any alcohol in the car during the trip to Charleston on July 2, 1988. After arriving in Charleston, decedent drove to Eric Zuspann’s house, where he and plaintiff spent one night.

The following day decedent, plaintiff, and Zuspann left Charleston at approximately noon to return to Aurora. Before leaving the city, they stopped at a liquor store to purchase a six-pack of beer. Decedent and Zuspann each drank a beer and the remaining cans were placed in a cooler. Shortly thereafter they stopped at a Wendy’s restaurant to use the washroom. After returning to the car, plaintiff sat in the backseat and shut her eyes. She opened her eyes when she felt the car driving on gravel and saw that the car was going to hit a tree. It was plaintiff’s opinion that the car was travelling “[approximately the speed limit, 55, 60” at the time it hit the tree.

Following the collision, plaintiff remained in the automobile for 45 minutes until paramedics could remove her. She was then taken to a local hospital and treated for a broken pelvic bone, back injuries, a sprained ankle, and torn knee ligaments.

Plaintiff indicated that she was physically active prior to the accident, engaging in aerobics on a daily basis and jogging, dancing, and horseback riding on a less frequent basis. Following the accident, she has experienced a constant pain in her back and has'been unable to participate in many of these activities. In addition, she experienced a great amount of pain in her pelvic area during her most recent pregnancy, even though she did not experience any similar pain while she was carrying her first child.

On cross-examination, plaintiff stated that she had surgery on her feet to remove bunions approximately five months before the accident. However, she did not experience any problems with the surgery or healing process. In addition, plaintiff indicated that she did not have any other pregnancies other than the two mentioned on direct examination.

With respect to her trip to Charleston with decedent, plaintiff stated that they went to a bar where Zuspann worked the night before the accident. They planned on returning to Aurora with Zuspann to pick up a friend before visiting the Taste of Chicago, an annual celebration on Chicago’s lakefront.

Shortly before the accident, plaintiff saw decedent and Zuspann fighting over the armrest in the front seat of the car. However, she did not see the car leave the road at any time before the accident. Plaintiff also stated, over objection, that she removed a can of beer from the cooler and “took a sip” of beer during the trip.

Eric Zuspann testified that he and decedent each had a “couple” of beers before they left Charleston with plaintiff on the day in question. However, he did not believe that plaintiff saw him and decedent drinking because she was inside the house. Zuspann indicated that the three of them left Charleston at approximately 12:30 p.m. and made only one stop before the accident. During the stop, plaintiff used a washroom at a Wendy’s restaurant while decedent and Zuspann bought a six-pack of beer at a liquor store. Immediately prior to the collision, decedent and Zuspann were fighting over the armrest. The next thing Zuspann remembered was waking up in a hospital. Zuspann did not believe that decedent was intoxicated or impaired on the day of the accident.

Sergeant Thomas Walker of the Grundy County sheriff’s department testified that he investigated the accident at issue in this case. Sergeant Walker stated that he could not find any evidence of any skidding, braking, yaws, or oversteering on the pavement before the car entered the gravel shoulder. The distance between the marks on the shoulder and the tree which the automobile struck was 122 feet. He was unable to determine how fast the automobile was travelling at the time of the impact. In addition, Walker observed three open cans of beer near the automobile and three unopened cans inside of a cooler in the backseat of the car.

Shirley Wille, a former co-worker of plaintiff, testified that plaintiff was in very good health before the accident and was a very active person. Following the accident, plaintiff became “very slow-moving” and appeared to be in a lot of pain.

Dr. Thomas Clark, a chiropractor, testified pursuant to an evidence deposition that he was plaintiff’s current employer. Plaintiff performs clerical work for Dr. Clark and has demonstrated various problems with her back, especially when bending over or lifting objects. However, Dr. Clark has not treated plaintiff for any injuries and is not aware if she was presently seeking any medical treatment.

Dr. Gregory Schierer, an orthopedic surgeon, testified that he examined plaintiff two days after the accident. X rays of plaintiff’s back revealed a compression fracture of her third lumbar vertebra, an injury which was consistent with an automobile accident like plaintiff was involved in. In addition, this injury would be likely to produce the pain which plaintiff was experiencing. Dr. Schierer also opined that plaintiff would probably experience this pain on a permanent basis.

Dr. Richard Richley also testified pursuant to an evidence deposition. Dr. Richley, an orthopedic surgeon, saw plaintiff on May 9, 1989, approximately 10 months after the accident and observed that her fractures had healed properly. He did recommend an exercise program to assist in her rehabilitation and to alleviate her back problems. ‘

Dr. Richley saw plaintiff a few more times before ordering a magnetic resonance imaging (MRI) scan for her back. The MRI revealed a “bulging of the L2-3 disc with some slippage of the spine at that level.” This finding was consistent with plaintiff’s chronic complaints of back pain. In addition, Dr. Richley opined that plaintiff would experience some degree of back pain on a permanent basis.

The first defense witness was Terry Marketti, a deputy sheriff of Grundy County. Deputy Marketti testified that he was the first police officer to arrive at the accident site and observed an automobile with “heavy front end damage.” After the passengers were removed from the automobile, Marketti began his inspection and found three open beer cans between the console and driver’s seat. He was unable to determine if the cans had been opened prior to the collision. He also found three unopened cans of beer in a cooler in the back of the car.

Following Deputy Marketti’s testimony, defendant was permitted to introduce into evidence, over plaintiff’s objection, decedent’s toxicology report.

Leo Reeves, the Grundy County coroner, testified for plaintiff in rebuttal that he extracted a blood sample from decedent approximately two hours after his death. Decedent’s sample was sent to a laboratory and was later determined to have a .12 blood-alcohol level. However, Reeves indicated that there was a potential for contamination of the sample because it was drawn from decedent’s heart, which may have resulted in the “commingling of thoracic fluids.” He did not know if the sample in this case was actually contaminated. He did indicate that decedent’s blood-alcohol level was at the bottom of the level of presumed intoxication in this State.

On cross-examination, Reeves stated that he also took a vitreous fluid sample from decedent near the time he took the blood sample. Reeves pointed out that he did so because the fluid contained in the eye would not be contaminated with other bodily fluids. The vitreous sample revealed a blood-alcohol level of .11.

Following Reeves’ testimony, both sides rested. After hearing closing arguments, the jury deliberated and returned a verdict in favor of plaintiff, and assessed damages at $48,000. The jury also determined that plaintiff was contributorily negligent (33.33%) and reduced the amount of recoverable damages to $32,000. Plaintiff’s post-trial motion was denied, and this appeal followed.

Initially, we note that plaintiff has filed a motion to strike a portion of defendant’s brief concerning the blood-alcohol results at issue in this case, which we ordered to be taken with the case. Plaintiff objects to one sentence in the argument section which is allegedly an opinion and “is nowhere to be found in the trial record.” We agree with plaintiff and grant this motion to strike.

Furthermore, defendant has also filed a motion to strike, contending that plaintiff’s reply brief did not conform to Supreme Court Rule 341(g) (134 Ill. 2d R. 341(g)). Defendant argues that plaintiff’s reply brief does not respond to any arguments presented in defendant’s brief. We disagree. While plaintiff makes some points which are not found in the record and which this court will not consider, the brief as a whole does respond to defendant’s brief and will not be stricken. See 134 Ill. 2d R. 341(g).

Plaintiff first contends on appeal that the trial court improperly allowed defendant to introduce a toxicology report of decedent’s blood-alcohol level into evidence at trial because there was no evidence to establish what the blood-alcohol level was at the time of the accident. Plaintiff contends that defendant was required to present some evidence on retrograde extrapolation or use some other method to demonstrate what decedent’s blood-alcohol level was at the time of the accident.

Plaintiff relies on Cuellar v. Hout (1988), 168 Ill. App. 3d 416, to support her position. In Cuellar, the plaintiff was involved in a motorcycle accident. Following the accident, he was taken to a hospital, and a blood-alcohol test was performed. The test indicated a blood-alcohol level of .064. At trial, a pharmacologist testified' that the plaintiff’s blood-alcohol level was .104 at the time of the accident, based upon the use of retrograde extrapolation. On appeal, this court determined that the expert testimony on retrograde extrapolation was proper because the relevant inquiry concerned the blood-alcohol level at the time alleged and not at the time the sample was taken. (Cuellar, 168 Ill. App. 3d at 421.) The court noted that retrograde extrapolation, or some other method, was a proper method to demonstrate “the concentration of alcohol in the person’s blood or breath at the time alleged.” 168 Ill. App. 3d at 421.

Plaintiff asserts that Cuellar “stands for the proposition that retrograde extrapolation or some other method is a prerequisite to the admissibility of a blood alcohol test taken subsequent to the time alleged.” We disagree. It is our opinion that some form of retrograde extrapolation is not a foundational requirement for the admission of a blood-alcohol test in all cases in which a lapse of time between the incident and actual testing occurs.

We note that the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 1—101 et seq.) provides that a blood-alcohol level of .10 or more at the time alleged will result in a presumption of intoxication. (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501.2(bX3).) Given that it is extremely unlikely that a blood sample can be drawn at the exact time of the accident, courts have permitted testimony which estimates the blood-alcohol level at a time earlier than when the sample was drawn. (Cuellar, 168 Ill. App. 3d at 421; People v. Johnigk (1982), 111 Ill. App. 3d 941, 944.) Thus, although the plaintiff’s blood-alcohol level in Cuellar was .064 approximately two hours after the accident, the court permitted an expert to testify that it would have been .104 at the time of the accident. Cuellar, 168 Ill. App. 3d at 421.

While we agree with the holding in Cuellar, we find that it did not establish a foundational requirement for extrapolation evidence before a blood-alcohol test can be admitted into evidence at trial. Of course, such evidence was necessary in Cuellar because the .064 blood-alcohol level failed to reach the minimum level for a statutory presumption of intoxication. It was only after a retrograde extrapolation analysis that the blood-alcohol level rose to .104, a level which permitted a presumption of intoxication.

While extrapolation evidence would have been permissible in the case at bar (see Johnigk, 111 Ill. App. 3d at 944), it was not a foundational requirement because decedent’s blood-alcohol level was .12 nearly two hours after the accident. Given that a reasonable length of time elapsed between the accident and when the sample was drawn and the sample registered above the statutorily imposed minimum .10 required to establish a presumption of intoxication, we hold that no extrapolation testimony was required before the test results could be admitted at trial.

We next consider plaintiff’s contention that the trial court improperly allowed defendant to cross-examine her concerning her alcohol consumption, prior foot surgery and other pregnancies. Plaintiff asserts that these instances of erroneous cross-examination were prejudicial to her and resulted in reversible error. We will address each of plaintiff’s assertions in turn.

With respect to the questions concerning her alcohol consumption, plaintiff contends that there was no evidence at trial indicating that she was intoxicated. Over objection, defense counsel was permitted to ask plaintiff: “Did you ever take a beer, a can of beer out of the cooler?” Plaintiff did not object to the question: “Did you drink out of that can?”

In general, evidence that a person has consumed alcoholic beverages is not, by itself, admissible. (Lively v. Kostoff (1988), 167 Ill. App. 3d 384, 391.) There must also be evidence to show that the drinking resulted in intoxication. Lively, 167 Ill. App. 3d at 391; Taylor v. City of Chicago (1983), 114 Ill. App. 3d 715, 717.

We find that the trial court properly overruled plaintiff’s objection to the question concerning whether she ever took a can out of the cooler. This question does not specifically ask if she consumed any alcoholic beverages, but only asks if she removed a can from the cooler. However, the question whether plaintiff took a drink out of the can does request information regarding her alcohol consumption. Had this question elicited this information to prove that plaintiff was intoxicated, this would constitute an error, as there was no evidence to indicate that plaintiff was intoxicated. (See Lively, 167 Ill. App. 3d at 391.) However, the question was not asked for this purpose but instead was asked to show plaintiff’s state of mind in choosing to remain in the automobile and her knowledge that alcoholic beverages were being consumed. Under these unique circumstances, we find no error in the admission of this evidence.

Plaintiff also contends that defense counsel should not have cross-examined her concerning whether she had undergone foot surgery prior to the accident and whether she was pregnant at any time after she gave birth to her son. Plaintiff argues that these questions were irrelevant and created such prejudice as to amount to reversible error.

We note that plaintiff did not object to either of these questions when they were asked. In general, the failure to specifically and timely object to certain testimony at the time it is presented waives the objection for purposes of review. (Von Seggren v. Smith (1987), 151 Ill. App. 3d 813, 814-15; Friedman v. Park District (1986), 151 Ill. App. 3d 374, 383.) We see no reason to ignore the waiver rule in this case as plaintiff clearly failed to object to the alleged improper questioning during cross-examination.

Plaintiff next argues that the trial court improperly instructed the jury on the statutory presumptions concerning intoxication. Plaintiff points out that the use of a statutory presumption of intoxication to prove her contributory negligence unjustifiably negated her observations with respect to decedent’s driving ability on the day in question. Plaintiff further asserts that this presumption was not meant to apply to passengers of vehicles, but only to drivers, and should not be permitted to punish her when she had no knowledge of any impairment to decedent.

The instruction at issue in this case originally stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
The concentration of alcohol in the person’s blood or breath at the time alleged as shown by analysis of the person’s blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
1. If there was at that time an alcohol concentration of 0.05 or less, it shall be presumed that the person was not under the influence of alcohol.
2. If there was at that time an alcohol concentration in excess of 0.05 but less than 0.10, such facts shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.
3. If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent or contributorily negligent before and at the time of the occurrence.”

At the instructions conference, the trial court decided to give the instruction over plaintiff’s objection. However, the court reversed its ruling the following day when plaintiff renewed her objection to the instruction. Plaintiff argued that the instruction was inappropriate because it allowed the jury to use the presumption of intoxication to determine whether she was contributorily negligent. The court agreed with plaintiff and struck the words “or contributorily negligent” from the final paragraph.

It is our opinion that the trial court adequately addressed plaintiff’s concerns with the instruction when it struck the “or contributorily negligent” phrase from the original instruction. By removing this phrase, the court effectively instructed the jury that the instruction applied only in assessing decedent’s negligence as the driver of the automobile. Furthermore, the instruction in no way negated plaintiff’s presentation of her own observations of decedent’s driving to the jury. Instead, the jury, as trier of fact, was simply required to balance the evidence of decedent’s blood-alcohol level (a presumption of intoxication according to the instruction) with plaintiff’s observations to determine if plaintiff was contributorily negligent by remaining in the automobile. We find no error in giving this instruction in this case.

Plaintiff also argues that the trial court improperly instructed the jury on intoxication. (See Illinois Pattern Jury Instructions, Civil, No. 12.01 (2d ed. 1971).) At the instructions conference, the court stated: “Defendant’s 83, I.P.I. 12.01 is given without objection.” To preserve an objection to a jury instruction, a party must object to the instruction offered, specify the defect claimed, and tender a correct instruction. (Deal v. Byford (1989), 127 Ill. 2d 192, 202-03.) The failure to do so will result in the waiver of the issue for review purposes. (Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 177.) This issue has not been properly preserved for review, and we will not consider it.

Plaintiff next alleges that the trial court erroneously denied her motion for summary judgment. Plaintiff argues that the local rule which the court based its ruling on (16th Jud. Cir. Ct. R. 6.04(a) (1989)) conflicts with section 2 — 1005(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(a)). However, the denial of a motion for summary judgment is not reviewable on appeal after a trial has been held because any error in the denial merges into the subsequent judgment. (American States Insurance Co. v. Action Fire Equipment, Inc. (1987), 157 Ill. App. 3d 34, 39; Skach v. Gee (1985), 137 Ill. App. 3d 216, 221.) The rationale for this rule is that it would be unjust to overturn a verdict reached after trial, where the evidence was presented to the trier of fact and subject to cross-examination, on evidence obtained solely from the pleadings and affidavits. (Paulson v. Suson (1981), 97 Ill. App. 3d 326, 328.) We see no reason to disregard this rule in this case, as plaintiff had the benefit of presenting all factual disputes to the jury for a resolution.

We next consider plaintiff’s contention that the jury verdict finding her contributorily negligent was against the manifest weight of the evidence. Plaintiff argues that there was no evidence to indicate that she was aware of decedent’s intoxication and thus no evidence establishing that she failed to exercise ordinary care by remaining in the vehicle.

We will not disturb a jury’s findings unless they are clearly erroneous or are against the manifest weight of the evidence. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 529.) For a verdict to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that which the trier of fact reached is clearly evident. (Central Production Credit Association v. Kruse (1987), 156 Ill. App. 3d 526, 532.) Furthermore, we must view the evidence in the light most favorable to the appellee when determining whether a verdict is contrary to the manifest weight of the evidence. Beddla v. Wilkins (1989), 181 Ill. App. 3d 833, 844; Bautista, 152 Ill. App. 3d at 529.

With these considerations in mind, we find that the jury’s verdict finding plaintiff contributorily negligent was not against the manifest weight of the evidence. In making this determination, we are mindful that passengers such as plaintiff normally trust the driver to operate the vehicle properly unless there is some reason to be aware of his or her lack of care. (Bauer v. Johnson (1980), 79 Ill. 2d 324, 331.) No passenger has a duty to control the driver unless the passenger knows or should have known that such actions are essential to his or her own safety. Bauer, 79 Ill. 2d at 332; Galliher v. Holloway (1985), 130 Ill. App. 3d 628, 636.

We find that the present case involves a situation in which the jury could properly find that plaintiff was aware that precautionary measures were necessary to protect her own safety. Plaintiff had a duty to exercise ordinary care for her own safety. (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 489.) An examination of the record reveals that plaintiff knew that beer was purchased near the beginning of the trip and that decedent, the driver of the automobile, consumed some of the beer. In addition, plaintiff was aware of the elbowing episodes between decedent and Zuspann during the course of the trip. Plaintiff also had an opportunity to leave the car when it stopped at the Wendy’s restaurant. Although there was no evidence of any erratic driving before the accident, it is our opinion that the above-mentioned evidence was sufficient to support the jury’s verdict finding plaintiff contributorily negligent in this case. See Hayes v. Alsburg (1978), 72 Ill. 2d 560, 567 (combination of evidentiary factors produced question of fact as to whether a backseat passenger was in due care for her own safety); Northern Trust Co. v. American Airlines, Inc. (1985), 142 Ill. App. 3d 21, 32 (question of whether plaintiff was contributorily negligent was “preeminently for the jury to decide”).

Plaintiff next contends that the jury also disregarded proven elements of damages for her pain and suffering. Plaintiff points out that the jury awarded her $48,000 in damages to cover her medical expenses but failed to award her any damages for pain and suffering, lost wages, or disability and disfigurement. Plaintiff argues that the jury’s failure to award her damages beyond those for medical expenses was inconsistent, against the manifest weight of the evidence and requires a new trial on damages only.

Plaintiff relies exclusively on Hinnen v. Burnett (1986), 144 Ill. App. 3d 1038, to support her position. In Hinnen, the jury awarded the plaintiff $2,500 for past medical expenses but failed to award her any damages for lost earnings, disability or pain and suffering. The appellate court reversed the damages award, holding that the verdict was internally inconsistent. (Hinnen, 144 Ill. App. 3d at 1046.) The court noted: “If the jury believed that plaintiff had no compensable pain and suffering, its award of pain-related expenses was wholly unwarranted and contrary to the manifest weight of the evidence. Conversely, if it believed that plaintiff’s pain and suffering were sufficiently serious to warrant expenditures for pain medication and physical therapy, its failure to award her compensation for that pain and suffering means that it disregarded a proven element of damages.” 144 Ill. App. 3d at 1046.

Plaintiff argues that the itemized jury verdict in the present case is identical to the jury verdict in Hinnen in that the jury in both cases failed to provide any damages for pain and suffering. The jury itemized damages in the present case as follows:

“$48,000 itemized as follows:
a. Disability and disfigurement: $-0-
b. Pain and suffering: $-0-
c. Medical expenses: $48,000
d. Lost earnings: $-0-”

Plaintiff contends that the jury disregarded proven elements of damages based on a reading of the itemized verdict form. Defendant disagrees, pointing out that the jury awarded plaintiff more damages for her medical expenses than she actually incurred. According to defendant, the jury’s award takes into account more than simply the medical bills and bears a reasonable relationship to her actual loss.

We agree with plaintiff that the jury award in this case failed to award her all of the proven elements of damages. While defendant’s position is entirely plausible on this issue, it is nevertheless speculation. Because an itemized verdict form was used which contained a space for pain and suffering damages, we cannot presume that any excess damages awarded for medical expenses was intended to compensate plaintiff for some other element of damage. (See Hinnen, 144 Ill. App. 3d at 1046.) Thus, plaintiff is entitled to a new trial on the issue of damages only.

In conclusion, we find no error in the trial court’s rulings on the admissibility of the toxicology report, the cross-examination of plaintiff, the jury instructions on intoxication, and the ruling on plaintiff’s motion for summary judgment. Furthermore, the jury verdict finding plaintiff contributorily negligent was not against the manifest weight of the evidence. We do believe, however, that the jury did disregard proven elements of damages and that plaintiff is thus entitled to a new trial on damages only. Following plaintiff’s new trial on damages only, the trial court is instructed to reduce the jury award by 33.33%, the amount which the jury in this case found plaintiff to be contributorily negligent.

For these reasons, the judgment of the circuit court of Kane County is affirmed in part and reversed in part, and the cause is remanded for a new trial on damages only.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, J., concurs.

JUSTICE WOODWARD,

dissenting:

One of the important issues in this case was the extent, if any, of the contributory negligence of the plaintiff as the plaintiff’s damages were reduced by one-third, or $16,000, by the jury’s verdict. One of the facts supporting the jury’s finding of contributory negligence on the plaintiff’s part would be voluntarily riding in the motor vehicle with a driver who was intoxicated or in a situation where there was evidence that would be sufficient to cause a reasonable person to know that the driver was intoxicated. To emphasize this issue, the defendant filed an affirmative defense alleging that the plaintiff was responsible for her injuries because she chose to remain in decedent’s car even though she was aware that he was intoxicated..

In support of the affirmative defense, the defendant introduced over the plaintiff’s objection a toxicology report showing that the decedent’s blood-alcohol level was .12 approximately two hours after the accident. The plaintiff contends that, in order to introduce this toxicology report in evidence, a foundation was required showing retrograde extrapolation or some other method of demonstrating decedent’s blood-alcohol level at the time of the accident. “Extrapolation” is defined as “[t]he process of estimating an unknown number outside the range of known numbers. Term sometimes used in cases when a court deduces a principle of law from another case.” (Black’s Law Dictionary 528 (5th ed. 1979).) “Retrograde” means “backward.”

The majority opinion states:

“Given that a reasonable length of time elapsed between the accident and when the sample was drawn and the sample registered above the statutorily imposed minimum .10 required to establish a presumption of intoxication, we hold that no extrapolation testimony was required before the test results could be admitted at trial.” (Emphasis added.) 213 Ill. App. 3d at 797.

The above statement of the majority ignores the following language of this court in Cuellar v. Hout (1988), 168 Ill. App. 3d 416:

“Contrary to plaintiff’s contention, the language quoted does not require that the test be ‘given “at the time” of the occurrence.’ Rather, the statute requires that the concentration of alcohol ‘at the time alleged’ be ‘shown by analysis of the person’s blood, urine, breath, or other bodily substance’ without reference to when the substance analyzed is taken from the person. [Citation.] It is, therefore, broad enough to allow the admission of evidence of the analysis of blood, urine, breath, or some other bodily substance at a time subsequent to the time alleged when that analysis can show, by use of retrograde extrapolation or some other method, the concentration of alcohol in the person’s blood or breath at the time alleged. We note that in virtually every case there will be some lapse of time between the time alleged and the performance of the analysis of the person’s blood, urine, breath, or other bodily substance so that in virtually every case a degree of extrapolation from the analysis will be required.” (Emphasis added.) 168 Ill. App. 3d at 421.

The majority opinion, while agreeing that evidence of retrograde extrapolation is admissible, distinguishes Cuellar on the basis that, in that case, evidence of retrograde extrapolation was necessary because the blood-alcohol level of the driver was .064 approximately two hours after the accident, and evidence of retrograde extrapolation showed the blood-alcohol level to be .104 at the time of the accident, thus permitting a presumption of intoxication. In the present case, the opinion of the majority assumes that, since the test conducted on the decedent showed a blood-alcohol level of .12 two hours after the accident, his blood-alcohol level had to have been higher at the time of the accident. Further, the majority assumes that the blood-alcohol level would not be lower at anytime within the period of two hours prior to the administering of the test.

I believe that Cuellar requires evidence of retrograde extrapolation when the test to determine the blood-alcohol level is administered, as it was in this case, two hours subsequent to the accident. Cuellar makes it clear that the relevant time of a person’s blood-alcohol level is at the time of the accident, not sometime in the future. It is clear from Cuellar that the reason virtually every case will require a degree of extrapolation is because in virtually every case there will be a lapse of time between the accident and the testing of the blood-alcohol level.

In Cuellar, the plaintiff was involved in an accident while driving a motorcycle, and the defendant asserted that he was intoxicated at the time of the accident. The defendant presented as a witness a pharmacologist, pharmacist and nutritionist who testified that, based on retrograde extrapolation, the blood-alcohol level of the plaintiff at the time of the accident was .12, although the test taken two hours after the accident showed .064. The plaintiff, on the other hand, presented a witness who was a pathologist who stated that a single measurement of blood-alcohol level could not be relied upon because without further evidence it could not be determined if the person tested is in the absorption phase or in the elimination phase; and that this determination is dependent upon the type of beverage consumed and the type of food consumed, which was all pertinent information to the validity of the retrograde extrapolation testimony.

The majority also ignores the fact that its argument distinguishing Cuellar was, in fact, raised in that case and rejected. The Cuellar court stated:

“Plaintiff attempts to distinguish [People v. Johnigk (1982), 111 Ill. App. 3d 941 (retrograde extrapolation testimony allowed),] on the basis that the actual blood-alcohol level found was in excess of .10 in Johnigk and was less than .10 in the case at bar. [Citation.] This distinction is irrelevant since (1) it is not the blood-alcohol level at the time of the test, but rather that at the time alleged, that is significant and (2) the distinction does not concern in any way the admissibility of testimony extrapolating from the actual test results to an earlier time.” (Emphasis added.) 168 Ill. App. 3d at 421-22.

In view of the publicity and general knowledge of jurors as operators of motor vehicles that a blood-alcohol level of .10 or above presumes intoxication, the admission of the toxicology report in this case without a prior scientific analysis unduly emphasized the issue of the decedent’s intoxication when the real issue as to plaintiff’s contributory negligence involved her opportunity to be aware of decedent’s condition while riding in his motor vehicle.

I conclude that it was error to admit the evidence of the blood-alcohol level of the decedent two hours after the accident without evidence of retrograde extrapolation or some other method of determining what the decedent’s blood-alcohol level was at the time of the accident.

I further conclude that this error requires that plaintiff receive a new trial. It is impossible to determine how much weight the jury gave to the toxicology report of decedent’s blood-alcohol level when it determined the degree of plaintiff’s contributory negligence. It, therefore, cannot be said that the jury would have found the plaintiff to be 33x/3% negligent without the evidence of decedent’s blood-alcohol level. I would reverse and remand this cause for a new trial.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. JOEL C. JACKSON, Petitioner-Appellant.
    Second District
    No. 2—89—0501
    Opinion filed May 31, 1991.
    Rehearing denied June 17,1991.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Joel C. Jackson, appeals from an order of the circuit court of Winnebago County dismissing his amended petition for post-conviction relief. The sole issue raised on appeal is whether the trial court erred in dismissing the petition without an evidentiary hearing.

On January 24, 1985, after a jury trial, defendant was found guilty of residential burglary (Ill. Rev. Stat, 1989, ch. 38, par. 19—3(a)) and was sentenced to an extended term of 18 years’ imprisonment. This court affirmed defendant’s conviction on direct appeal. People v. Jackson (1986), 140 Ill. App. 3d 318.

Subsequently, on December 21, 1987, defendant filed a pro se petition for post-conviction relief. Attorney Francis. Martinez was appointed to represent defendant in the post-conviction proceedings. Martinez then filed a verified petition for post-conviction relief on July 28, 1988. The petition alleged that defendant was denied the effective assistance of counsel because defendant’s trial counsel failed to advise defendant of his eligibility for an extended-term sentence so that defendant could not make an informed decision regarding the conduct of his defense.

The State filed a motion to dismiss the petition on August 4, 1988, alleging that the petition should be dismissed because it was unsupported by affidavit and because defendant’s allegations of ineffective assistance of counsel could have been raised on direct appeal.

The court heard the arguments of counsel regarding the State’s motion to dismiss on October 28, 1988. An amended petition for post-conviction relief was later filed, on October 31, 1988. This petition alleged, in pertinent part, that defendant’s counsel failed to advise defendant of his eligibility for an extended sentence of up to 30 years and:

“3. That lacking the acknowledge [sic] of the aforementioned eligibility and believing that counsel had fully advised him of his rights and all possible results of a conviction, Defendant entered into plea bargaining with the State, and accordingly refused to plea [sic] guilty and accept a sentence of four (4) years imprisonment.
4. But for trial court counsel’s failure to advise the Defendant of his eligibility for an extended sentence of up to thirty (30) years if convicted, Defendant would have excepted [sic] the State’s offer of a plea of guilty with four (4) years of imprisonment.”

The petition further alleged that these allegations were not raised during the direct appeal “due to the close association of Defendant’s trial court counsel and his appellate counsel.” Defendant requested in the petition that the judgment of conviction be vacated and that he “be allowed to enter a plea of guilty and be sentenced to a period of four (4) years imprisonment.” In essence, defendant desires a reduction in his sentence from 18 to 4 years. Defendant signed the petition and a verification clause in which he stated that “to the best of my knowledge and belief, the foregoing is correct in fact and substance.” Defendant’s affidavit was also attached to the petition, but the affidavit only related to defendant’s desire to preserve the issue of whether he was convicted by a jury of his peers.

The record on appeal shows that defendant was not informed by the trial court that he was eligible for an extended-term sentence at arraignment or at any time prior to the sentencing hearing. The record also discloses that the possibility of a negotiated plea was mentioned by a public defender during a status hearing on November 1, 1984, prior to the trial in the case.

On May 1, 1989, the trial court granted the State’s motion to dismiss. The court noted that a trial court has no constitutional obligation to inform a defendant of a potential extended-term sentence unless the defendant has chosen to plead guilty. The court also stated that defendant had not met the test to show ineffective assistance of counsel and had waived the right to raise the issue by failing to present it in his direct appeal. Defendant filed a timely notice of appeal from this ruling.

Defendant argues on appeal that the trial court erred in dismissing defendant’s amended petition for post-conviction relief without an evidentiary hearing. He contends that the trial court obviously missed the point of the allegations in the petition as the court focused on the duty of a trial court to inform a defendant of the potential sentence but did not consider the obligation of trial defense counsel to advise his client of the potential sentence.

Defendant relies on People v. Whitfield (1968), 40 Ill. 2d 308, and People v. Ferguson (1980), 90 Ill. App. 3d 416, which held that a criminal defendant has a constitutional right to be advised by his counsel of the State’s offer of a lesser degree of punishment in return for a plea of guilty to a reduced charge. Defendant asserts that, clearly, the duty to inform a client of a plea offer is only partially fulfilled if counsel neglects to inform the client of what he faces if he turns down the offer, goes to trial and is convicted. He contends that this is true because it is impossible to calculate the benefit from pleading guilty without knowledge of the maximum possible sentence. He argues that this is especially true in this case as the record shows that defendant was never informed of the range of penalties by the trial court.

The State first argues that the trial court was correct in determining that defendant waived the right to raise this issue by failing to raise it in his direct appeal. Defendant contends that this issue could not have been raised in his direct appeal because the allegations of ineffective assistance of counsel involved here require an inquiry into matters outside of the common-law record.

The same issue was considered by the court in People v. Jones (1988), 174 Ill. App. 3d 794, a case involving a claim of ineffective assistance of counsel very similar to defendant’s claim. In that case, the court determined that the trial record did not contain anything which reflected on the defendant’s knowledge at the time of rejecting the plea offer or his counsel’s alleged failure to inform defendant of the possibility of an extended-term sentence. The Jones court, therefore, concluded that the issue could not have been raised in a direct appeal and was properly considered in a post-conviction proceeding. (Jones, 174 Ill. App. 3d at 797.) Although there is merit to the court’s decision in Jones, we believe the proper manner to prosecute the issues raised by the defendant would have been through a motion pursuant to section 5—8—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(c)). Having failed to file a motion to reduce or vacate his sentence pursuant to this section and having the issue disposed of in his appeal, we believe defendant has waived this issue. Defendant, the moment he was sentenced, realized the defect of which he now complains. Had he properly filed a motion to reduce his sentence, the trial court could have considered the error and disposed of the issue prior to any appeal. (See People v. Thomas (1990), 193 Ill. App. 3d 525.) We believe defendant, by failing to file this motion, has committed a procedural default. He should not now be allowed to raise this issue in a post-conviction proceeding.

Defendant attempts to avoid a determination of waiver by alleging the trial and appellate counsel, in close association, affected his appeal. However, he does not attach affidavits in support of his assertion, nor does he explain the failure to seek reduction of his sentence. Although this court in Thomas has suggested the failure to raise an issue in the reduction motion will not result in its waiver on appeal, there still must be something in the record for this court to determine reversible error. In conclusion, we do not believe Jones is controlling, especially in view of the following rationale for affirmance.

The State next argues that the petition was properly dismissed because of defendant’s failure to supply supporting material with the petition. We agree and affirm the decision of the trial court on that basis.

The Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.) provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred at trial. (People v. Owens (1989), 129 Ill. 2d 303, 307; People v. Seidler (1990), 203 Ill. App. 3d 666, 668.) Section 122—2 of the Act provides that a petition for post-conviction relief “shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.) It is well established that a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (Owens, 129 Ill. 2d at 308; People v. Del Vecchio (1989), 129 Ill. 2d 265, 279.) “A hearing is only allowed if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits.” Del Vecchio, 129 Ill. 2d at 279; see also People v. Saunders (1989), 187 Ill. App. 3d 734, 739.

The showing of a violation of constitutional rights must be based on factual allegations, not conclusory statements. (People v. Hysell (1971), 48 Ill. 2d 522, 527; People v. Barr (1990), 200 Ill. App. 3d 1077, 1080.) It is the petitioner’s burden to support the allegations with affidavits, records, or other evidence containing specific facts. (Barr, 200 Ill. App. 3d at 1080.) Unsupported conclusional allegations in the petition or in the defendant’s own affidavit are not sufficient to require a post-conviction hearing under the Act. (People v. Pierce (1971), 48 Ill. 2d 48, 50; People v. Norris (1986), 147 Ill. App. 3d 178, 180; see also People v. Phillips (1989), 183 Ill. App. 3d 417, 423-24.) The dismissal of a petition for post-conviction relief is within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. Saunders, 187 Ill. App. 3d at 739; see also Del Vecchio, 129 Ill. 2d at 284.

Defendant has not cited, nor have we found, any Illinois cases which hold that the failure to inform a defendant of his eligibility for an extended-term sentence during plea negotiations constitutes the ineffective assistance of counsel so that a defendant’s sixth amendment right to counsel is violated.

We find that defendant’s petition for post-conviction relief fails to make the necessary substantial showing of the violation of a constitutional right as it is not supported by affidavits. We acknowledge that the petition is verified so that' defendant’s affidavit regarding allegations contained in the petition was not procedurally necessary. (See People v. Williams (1970), 47 Ill. 2d 1.) However, in the cases relied upon by defendant, additional affidavits were also included with the petition. In Whitfield, the affidavit of the assistant State’s Attorney who prosecuted the case was attached to the petition and stated that an offer to reduce the charge was made to the defendant’s counsel before trial. (Whitfield, 40 Ill. 2d at 309-10.) In Ferguson, the petition for post-conviction relief was supported by five affidavits including the affidavit of the assistant State’s Attorney involved in the plea negotiations and the affidavits of two of the defendant’s relatives who heard the defendant’s counsel acknowledge the transmittal of an offer in return for a plea. Ferguson, 90 Ill. App. 3d at 417-18.

Similarly, in People v. Stepheny (1970), 46 Ill. 2d 153, 155-56, and People v. Thomas (1967), 38 Ill. 2d 321, 323, also cited by defendant, supporting affidavits were attached to the petitions. (See also People v. Munday (1987), 153 Ill. App. 3d 910 (evidentiary hearing necessary regarding the defendant’s claim of ineffective assistance of counsel based on allegations that his trial attorneys misrepresented plea agreement where affidavits of prior attorneys supporting claim were attached to petition).) Finally, defendant’s reliance on People v. Jones (1988), 174 Ill. App. 3d 794, is misplaced. While the defendant in Jones raised a very similar claim of ineffective assistance of counsel in a petition for post-conviction relief, the petition was denied after a hearing. The Jones court did not discuss the issue of the sufficiency of the petition.

Support for the allegations in the petition also does not exist in the record. While defendant has pointed out that the record shows that the trial court did not admonish him of the possibility of an extended-term sentence until the sentencing hearing and that there was a mention in the record of plea negotiations, this support is minimal. The record provides no support for defendant’s allegations that trial counsel did not inform him of the possibility of an extended-term sentence or that the State made an offer of a four-year sentence in return for a plea of guilty. Supporting affidavits were, therefore, substantively necessary.

In the absence of affidavits supporting the somewhat conclusory allegations contained in defendant’s amended petition for post-conviction relief, we cannot say that the trial court abused its discretion in determining that the petition should be dismissed without an evidentiary hearing.

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

Affirmed.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE DUNN JUSTICE GEIGER,

text:
    JOSEPH W. SIMANTZ et al., Plaintiffs-Appellants, v. PRIME MOTOR INNS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—90—0063
    Opinion filed February 21, 1991.
    GEIGER, J., dissenting.

      Donald J. Simantz and James C. James III, both of Matthews, Dean, McKenna & Storer, of Aurora, and Mark A. Pheanis, of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellants.
    Robert L. Bartolone and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee Prime Motor Inns, Inc.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Joseph W. Simantz, Anthony Piazza and Marianne J. Serpico Piazza, appeal from an order of the circuit court of Kane County dismissing their action against defendants on the basis of forum non conveniens.

Plaintiffs were involved in an automobile accident in Phoenix, Arizona, in April 1987. As a result of the accident, plaintiffs filed suit against defendants in the circuit court of Kane County. In their complaint, plaintiffs alleged that the car in which they were riding was struck by a van driven by defendant Overmier and that Overmier was an agent or employee of each of the corporate defendants. Defendants filed a motion to dismiss on the basis of forum non conveniens, alleging that Maricopa County, Arizona, would be a more appropriate forum for a trial of the cause. The trial court granted the motion, and plaintiffs appeal.

The parties agree that for purposes of the motion the facts are not in dispute. Plaintiffs Anthony and Marianne Piazza are residents of Illinois; plaintiff Simantz is a resident of Arizona; defendant Overmier is a resident of Arizona; and all “corporate witnesses” for defendants are residents of Arizona. The accident occurred in Arizona. All of the plaintiffs were treated for accident-related injuries in Arizona and in Illinois.

The doctrine of forum non conveniens presupposes the existence of more than one forum in which jurisdiction may be obtained over the parties and the subject matter of the case and in which the controversy may be tried. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364.) The inquiry in any forum non conveniens case centers upon which of several forums is the most convenient under the facts of the case. (Wieser, 98 Ill. 2d at 365.) The question is not one of jurisdiction; even though the forum may have the power to adjudicate the controversy, under the doctrine it may be inappropriate under the facts of the case to do so if there is another forum with jurisdiction of the parties in which the case can be more conveniently tried. Wieser, 98 Ill. 2d at 365.

A trial court is vested with broad discretion in balancing the various considerations relevant to a ruling on a forum non conveniens motion, and its decision will be reversed only if it represents an abuse of discretion. (McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 288.) In ruling on a forum non conveniens motion, the court should consider the private interests of the litigants, including the relative ease of access to the sources of proof; the availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of a view of the premises, if appropriate; and all other practical problems that make trial of a case easy, expeditious and inexpensive. The court should also consider public interest factors, including the congestion of court dockets; the burden of jury duty on a community which has no relation to the litigation; local interest in having localized controversies decided at home; and the appropriateness of having the case heard in a forum familiar with the State law that governs the case. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843; People ex rel. Compagnie Nationale Air France v. Giliberto (1978), 74 Ill. 2d 90,110-11.

Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. (Wieser, 98 Ill. 2d at 366.) If the chosen forum is plaintiff’s home forum, that choice should be given substantial deference, and the court may reasonably assume that the choice is convenient; both public and private interests tend to weigh in plaintiff’s favor when he chooses to sue at home. McClain, 121 Ill. 2d at 289-90.

A review of the facts brings us to the conclusion that the balance is not in favor of defendants. Most of the private factors do not favor one State over the other. Defendants have not suggested that a view of the site of the accident would be beneficial, and neither party has suggested that there are occurrence witnesses other than the parties themselves. Although defendants have alluded to “corporate witnesses” who reside in Arizona, they have not suggested what role these witnesses might play, and, in any event, we assume that defendants are referring to their own employees, so it is doubtful that there will be any difficulty encountered in securing their attendance. In light of the fact that all plaintiffs received medical treatment in both Arizona and Illinois, any difficulties involved in obtaining out-of-State medical evidence would be encountered whether the case were tried in Illinois or in Arizona. Similarly, one of the parties will be forced to bear the expense and inconvenience of out-of-State travel whether the case is tried in Arizona or in Illinois.

Most of the public interest factors do not weigh in favor of either forum. Neither party has made any representations concerning congested court dockets in either forum. Arizona, as situs of the accident and home of one of the plaintiffs and all of the defendants, certainly has an interest in providing a forum in which to resolve the dispute but so does Illinois, home of two of the plaintiffs. (See Wieser, 98 Ill. 2d 371-72.) The action, therefore, would not be an unwarranted burden on the people or courts of either forum.

The parties agree that Arizona law will govern the cause of action. This is the only factor actually favoring Arizona over Illinois. Illinois courts can apply the law of a foreign State in appropriate circumstances, although they should not be burdened with doing so unless there are strong policy reasons and Illinois has a strong connection with the case. (Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 232.) Inasmuch as Illinois is the home of two of the plaintiffs and is their chosen forum, there are strong policy interests involved and strong connections with the case. Further, given the nature of this case, a common-law negligence action arising from a vehicular collision, we have no reason to believe that Arizona law will present any problems for an Illinois court.

The fact remains that plaintiffs have chosen to sue in Illinois, the home forum of two of the three plaintiffs. As noted above, when the chosen forum is plaintiffs’ home forum, that choice is to be given substantial deference (McClain, 121 Ill. 2d at 289), and unless the balance is strongly in favor of defendant, plaintiffs’ choice of forum should rarely be disturbed (Wieser, 98 Ill. 2d at 366). Our review of the relevant factors reveals that the balance does not favor defendants’ choice, and it definitely does not strongly favor defendants’ choice. Defendants have failed to overcome the presumption in favor of plaintiffs’ chosen forum.

We realize that it is not our task to determine whether the trial court exercised its discretion wisely, but rather to determine if that discretion has been abused. (Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 503-04.) However, we conclude that the standards favoring plaintiffs’ choice of forum, especially if the choice is plaintiffs’ home forum, would have little meaning if defendants were permitted to defeat that choice on the facts presented in this case, and the trial court’s order must be reversed and the cause remanded.

Finally, we must address a question raised by the briefs in this case. The question is whether the fact that the two Illinois plaintiffs are not residents of Kane County, the county in which they filed their suit, and the fact that the litigation has few, if any, connections with Kane County is relevant to an interstate forum non conveniens motion. Defendants have alleged that the litigation has" few connections with Kane County and have made much of the fact that the Illinois plaintiffs are residents of Cook County and Du Page County. They contend that since plaintiffs are not residents of Kane County, they have not sued in their “home forum” and their choice of forum, therefore, is not deserving of substantial deference. We disagree.

Defendants’ motion to dismiss was based on interstate forum non conveniens; the issue to be addressed on such a motion is whether the more appropriate forum is outside Illinois. The focus is on Illinois’ connections with the litigation. For purposes of such a motion, the “home forum” of the Illinois residents is Illinois. If defendants feel that there is another county in Illinois that might provide a more appropriate forum for this action, they are free to file an mi-rastate forum non conveniens motion and to request a transfer of the action to that county.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McLAREN, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully dissent. As the majority notes, the role of the court in this case is to determine whether the trial court abused its broad discretion in ruling that Kane County, Illinois, was forum non conveniens for this action. (See McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 288.) I believe that the facts of this case support the finding of the trial court, and I would find no abuse of discretion and would affirm.

This case is based on an automobile accident that occurred in Arizona. One of the three plaintiffs is an Arizona resident. The one individual defendant and all the several corporate defendants are residents of Arizona. The only Illinois connections noted by the majority are that two of the plaintiffs, although injured in Arizona, are Illinois residents and that the plaintiffs were treated for their injuries both in Arizona and Illinois. Given the overwhelmingly strong connection between the facts of this case and State of Arizona, I find no basis to find that the trial court lacked discretion to find that for forum non conveniens reasons the action should be tried in Arizona.

The majority cites a rule that, unless the balance strongly favors the defendant, the plaintiffs choice of forum rarely should be disturbed, particularly if the chosen forum is the plaintiff’s home forum. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 366.) However, that law is not persuasive in this case. Even ignoring the fact that Kane County is not home for any of the plaintiffs, because Illinois is not the home for all of the plaintiffs, their choice of an Illinois forum is entitled to less deference than it might otherwise be. See Wieser, 98 Ill. 2d at 367.

Here, despite the majority’s suggestion to the contrary, an Arizona trial provides the plaintiffs a clear benefit. Although they may be capable of compelling testimony in Illinois from their own Arizona witnesses, it is clear that they bear a significantly greater burden if they must do so. Furthermore, although the agreed application of Arizona law does not dictate an Arizona forum, it clearly weighs in favor of that choice. That is especially so here where Illinois has no particularly strong connection to the case and Arizona, in contrast, does.

It was the trial court’s obligation to weigh all the factors related to whether to decline jurisdiction on forum non conveniens grounds. Considering the circumstances here, the court’s determination was within.its broad discretion. It should not be disturbed.