author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID MAUST, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 88—2109
    Opinion filed June 27,1991.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant David Maust (defendant) made incriminating statements, regarding his involvement in a 1981 Chicago homicide for which he had not yet been charged, during custodial interrogation initiated by officers of the Cook County sheriff’s police. At the time he gave these statements, defendant was in custody in a Texas prison for an unrelated criminal charge that had been filed against him in that State, and local counsel had been appointed to represent him regarding that offense.

After defendant made the incriminating remarks to Cook County authorities regarding the Chicago murder, he was indicted in Illinois for that offense and waived formal proceedings for his extradition from Texas to Illinois. In his written waiver of extradition proceedings, defendant requested that “counsel be appointed to represent [him].” Later, when defendant was being returned to Illinois in the custody of Cook County sheriff’s police, defendant made additional incriminating statements regarding the Chicago homicide.

Upon his return to Illinois, defendant was arraigned for the Chicago murder and appointed counsel to represent him. He filed motions to suppress his incriminating statements regarding the Chicago homicide, arguing that the statements had been taken in violation of his fifth and sixth amendment rights to counsel under the United States Constitution (U.S. Const., amends. V, VI). Following a hearing, the trial court suppressed both sets of statements made by defendant. The State appeals from this ruling.

We conclude that defendant’s acceptance of counsel for the Texas criminal charge, where there is nothing in the record to show that defendant invoked his right to an attorney during any previous custodial interrogation, did not prohibit the Cook County sheriff’s police from questioning defendant with respect to the unrelated Chicago homicide. However, we also determine that defendant effectively invoked his sixth amendment right to counsel when he waived formal extradition proceedings following his indictment for the Chicago murder. We find no basis to disturb the trial court’s evidentiary finding that defendant’s second set of statements, during his return journey to Illinois, was prompted by remarks from the Cook County sheriff’s police who accompanied him. Accordingly, we reverse the trial court’s suppression of defendant’s first set of statements to authorities, affirm the court’s suppression of defendant’s second set of statements, and remand the matter for further proceedings consistent herewith.

The following facts derive from the hearing on defendant’s motions to suppress his statements. In 1982, the Cook County sheriff’s police learned that defendant was being held in a Texas prison. Officers William Behrens and Philip Bettiker of the Cook County sheriff’s police travelled to the Galveston County, Texas, sheriff’s office in May 1982 to question defendant regarding a 1981 Chicago murder. Before questioning defendant, the officers informed him of his Miranda rights and defendant acknowledged and waived these rights. Thereafter, defendant made statements incriminating himself in the 1981 Chicago murder.

At the time he made these statements to Cook County Officers Behrens and Bettiker, defendant was represented by local counsel on an unrelated Texas criminal offense for which defendant had been charged prior to the Cook County officers’ conversation with defendant. The officers were aware that defendant was being held for the Texas offense, but did not know that defendant had been appointed counsel with respect to the Texas charge.

Thereafter, an indictment was returned against defendant in Illinois charging him with the 1981 Chicago homicide and his concealment thereof. (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1, 9 — 3.1.) Defendant then waived formal extradition proceedings and agreed to return to Illinois to face the criminal indictments that had been filed against him in connection with the 1981 Chicago murder. In his written waiver of extradition proceedings, defendant requested that “counsel be appointed to represent [him].”

In December 1983, defendant was returned to Illinois in the custody of Officers Edward O’Donnell and Joseph Curtin of the Cook County sheriff’s police. During this return trip, defendant made additional incriminating statements to the officers regarding the 1981 Chicago homicide. At the hearing on defendant’s motion to suppress, defendant testified that his statements were prompted by remarks from the officers who accompanied him to Chicago. The officers testified that defendant’s statements were volunteered and that they had said nothing to defendant to elicit his incriminating remarks.

Following his return to Illinois, defendant was arraigned and appointed counsel to represent him for the Chicago homicide. His attorney filed motions to suppress his statements to the Cook County sheriff’s police that defendant made in May 1982 and December 1983. In these motions, defendant argued the May 1982 statements were taken in violation of the right to counsel defendant invoked when he was appointed local counsel for the unrelated Texas criminal charge. Defendant claimed that the December 1983 statements should be suppressed because they violated the right to counsel he invoked when he waived formal extradition proceedings, and because his remarks had occurred during interrogation prompted by the officers in violation of defendant’s fifth and sixth amendment rights to counsel under the United States Constitution.

Following a hearing, the trial court granted the defendant’s motions to suppress both sets of statements he made to the Cook County sheriff’s police. The trial court specifically credited defendant’s testimony that his December 1983 statements, during his return from Texas to Illinois, were prompted by comments from the officers who accompanied defendant during this trip. The State appeals from the trial court’s suppression order.

I

The defendant contends that his acceptance of legal representation at arraignment on the Texas offense served to trigger his right to counsel under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, during his subsequent custodial interrogation concerning the 1981 Chicago homicide with which he had not then been charged, and which was unrelated to the Texas offense. The State argues that the appointment of Texas counsel to represent defendant on the unrelated Texas criminal charge did not preclude the officers’ questioning of defendant regarding the 1981 Chicago murder.

A

The defendant’s argument in the instant appeal relies upon jurisprudence under the fifth and sixth amendments to the United States Constitution. Under the fifth amendment, no person “shall be compelled in any criminal case to be a witness against himself.” (U.S. Const., amend. V.) To safeguard this right against self-incrimination during custodial interrogation, authorities must inform the suspect before questioning begins that the accused has a right to remain silent, that the statements he makes to authorities may be used as evidence against him, and that he has a right to the presence of an attorney, either appointed or retained. (Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) If the accused indicates during custodial interrogation that he desires the assistance of counsel, additional questioning may resume only if the suspect initiates further dialogue with authorities. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; see also Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (per curiam).) The Edwards prohibition against subsequent police questioning following a suspect’s request for counsel is not “investigation specific,” but serves to bar subsequent interrogation of the accused regarding separate, unrelated offenses. Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.

Upon the commencement of formal adversarial proceedings against an accused, the suspect is accorded the sixth amendment “right to *** have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) This guarantee applies to all critical stages of the prosecution including post-indictment interrogation. (United States v. Gouveia (1984), 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292.) The Miranda warnings are deemed sufficient to apprise an accused of his right to counsel if police undertake questioning of the suspect regarding the charged offense before the suspect has been arraigned. (Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389.) Once the accused requests or is appointed counsel at arraignment or similar proceeding, authorities are prohibited from initiating further questioning of the defendant regarding the criminal activity for which the defendant has been indicted and counsel provided. (Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.) In addition, once the sixth amendment right to counsel has attached, authorities may not use surreptitious means to gain information from the accused regarding the charged offense. Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477; United States v. Henry (1980), 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183.

B

To support his position that the acceptance of sixth amendment counsel serves to trigger the fifth amendment right to counsel, the defendant draws upon reasoning found in Michigan v. Jackson (475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.) In Jackson, the Court determined that a suspect who accepts counsel at arraignment presumptively invokes his sixth amendment right to the assistance of counsel at all “critical stages” of the prosecution of the offense for which the accused has been charged, including post-arraignment custodial interrogation regarding the charged offense. The Court further held that the accused’s acceptance of sixth amendment counsel at arraignment should be accorded the protection of the Edwards rule, under which a suspect’s request for fifth amendment counsel during custodial interrogation bars subsequent questioning initiated by the authorities. Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

In reaching its conclusion that the Edwards rule should be extended to protect an accused from post-arraignment custodial interrogation for the charged offense, the Court noted that arraignment represents the stage at which the State has “ ‘committed itself to prosecute, *** [and] a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.’ ” (Jackson, 475 U.S. at 631, 89 L. Ed. 2d at 639, 106 S. Ct. at 1408, quoting Gouveia, 467 U.S. at 189, 81 L. Ed. 2d at 155, 104 S. Ct. at 2298.) The Court also determined that the suspect’s acceptance of counsel should not be limited to assistance of counsel at trial, but included post-arraignment custodial interrogation as well. In this regard, the Court observed that invocations of the right to counsel are presumptively accorded a broad, rather than a narrow, interpretation. (Jackson, 475 U.S. at 633, 89 L. Ed. 2d at 640, 106 S. Ct. at 1409.) The Court noted that a broad construction was appropriate because the average suspect does not know whether his acceptance of counsel serves to invoke his fifth amendment or his sixth amendment right to counsel. Rather, the suspect’s acceptance of counsel at arraignment constitutes an expression that the accused “ ‘does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.’ [Citation.]” 475 U.S. at 633 n.7, 89 L. Ed. 2d at 641 n.7, 106 S. Ct. at 1409 n.7.

Defendant argues that a suspect who accepts sixth amendment counsel at arraignment, indicating that “he is [not] sufficiently capable of dealing with his adversaries singlehandedly” during post-arraignment custodial interrogation regarding the charged offense, also thereby presumptively invokes his fifth amendment right to counsel for post-arraignment custodial interrogation regarding the charged offense. Defendant then asserts that an arraigned suspect, by invoking his fifth amendment right to counsel under Miranda for custodial interrogation pertaining to the charged offense, also presumptively invokes his Miranda right to counsel for custodial interrogation regarding uncharged, unrelated offenses. Defendant relies upon Arizona v. Roberson (486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093) to support his argument that the invocation of the fifth amendment right to counsel for post-arraignment custodial interrogation regarding the charged offense also presumptively encompasses subsequent custodial questioning regarding an unrelated, uncharged crime.

In Roberson, the Court held that a suspect who requests counsel during custodial interrogation presumptively invokes his Miranda right to the assistance of an attorney for all custodial interrogation, regardless of the crime for which questioning was initiated. The Court reasoned that a defendant who is subjected to custodial interrogation is “protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.” (Roberson, 486 U.S. at 685, 100 L. Ed. 2d at 716, 108 S. Ct. at 2100.) In the context of custodial interrogation, which by its very nature may pertain to any number of criminal investigations of the accused, the interrogated suspect’s “request for counsel — that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance-does not disappear simply because the police have approached the suspect, still in custody, *** about a separate investigation.” Roberson, 486 U.S. at 683, 100 L. Ed. 2d at 715, 108 S. Ct. 2099.

C

The defendant’s argument in the instant cause seeks to equate a suspect’s sixth amendment acceptance of counsel, which takes place during arraignment, with an accused’s fifth amendment request for counsel during custodial interrogation. Based upon this analogy, defendant asserts that the defendant’s acceptance of sixth amendment counsel prohibits police interrogation of the accused regarding uncharged, unrelated offenses. We have previously rejected an argument identical to that raised by defendant herein. (People v, Bryant (1990), 202 Ill. App. 3d 290, 559 N.E.2d 930; People v. Jackson (1990), 198 Ill. App. 3d 831, 556 N.E.2d 619.) Moreover, the United States Supreme Court recently found defendant’s attempted analogy unpersuasive. (McNeil v. Wisconsin (1991), 501 U.S._, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) Accordingly, we reaffirm our adherence to our prior decisions.

Defendant’s argument fails to take into account the contextual distinctions between custodial interrogation and arraignment. (See McNeil, 501 U.S___ _, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) A suspect undergoing custodial interrogation is confronted with open-ended police questioning, and additional interrogation of the accused following his request for the assistance of counsel carries a subtle, yet powerful, compulsion to make a self-incriminating statement. (Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093; Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) At arraignment, an accused does not confront a “police-dominated atmosphere [] *** [t]hat generate^] ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely’ ” (Illinois v. Perkins (1990), 496 U.S. 292, 296, 110 L. Ed. 2d 243, 250, 110 S. Ct. 2394, 2397, quoting Miranda, 384 U.S. at 445, 467, 16 L. Ed. 2d at 707, 719, 86 S. Ct. at 1612, 1624), and the arraignment is not intended to elicit an incriminating statement from the suspect. The purpose of arraignment is to explicitly apprise the defendant of the specifically enumerated charges that have been lodged against him, and to inform the accused of his right to be represented by an attorney in defense of these charges. (See Ill. Rev. Stat. 1989, ch. 38, par. 113 — 1 et seq.) Given the circumstances surrounding acceptance of counsel at arraignment, subsequent custodial interrogation of an arraigned suspect on an uncharged, unrelated offense will present “little chance, as there was in Edwards, that the defendant [will] perceivef ] the Miranda warnings *** as a denial of his right to have counsel present during custodial interrogation.” (Jackson, 198 Ill. App. 3d at 844; see McNeil, 501 U.S. _, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) In addition, defendant’s proposed rule would significantly hamper legitimate police investigation of an accused’s involvement in uncharged, unrelated criminal activity. (McNeil, 501 U.S. _, 115 L. Ed. 2d 158, 111 U.S. 2204.) Consequently, we do not believe that the reasoning of Roberson or Jackson supports defendant’s position. (See McNeil, 501 U.S__, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) “ ‘Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.’ ” Perkins, 496 U.S. at 296, 110 L. Ed. 2d at 250, 110 S. Ct. at 2397, quoting Berkemer v. McCarty (1984), 468 U.S. 420, 437, 82 L. Ed. 2d 317, 333, 104 S. Ct. 3138, 3148-49.

In view of the foregoing considerations, we conclude that a defendant who has not previously invoked his right to counsel at custodial interrogation, and who accepts assistance of an attorney at arraignment, has not presumptively invoked his fifth amendment right to representation of counsel during subsequent custodial interrogation regarding unrelated criminal activity for which the accused had not yet been charged.

II

Based upon this determination, we find that the defendant’s May 1982 statements to Cook County authorities were not obtained in violation of his fifth amendment right to counsel. Defendant had a right to the presence of an attorney at all custodial interrogation, and if he requested the assistance of counsel, subsequent questioning could occur only upon defendant’s initiation. (Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.) However, there is nothing in the record to indicate that the defendant invoked his right to counsel during any custodial interrogation that might have taken place before defendant was arraigned and accepted counsel for the unrelated Texas offense. The record also does not show that defendant requested counsel at any custodial interrogation that might have occurred following his Texas arraignment. When defendant was questioned by Cook County sheriff’s police in May 1982, he was informed of and waived his Miranda rights, including his right to an attorney. Defendant does not argue on appeal that his waiver of Miranda rights during this questioning was involuntary, unintelligent, or unknowing. On this record, the custodial interrogation undertaken by the Cook County sheriff’s police in May 1982 regarding the 1981 Chicago homicide did not violate defendant’s fifth amendment right to counsel under Miranda.

We also note that the defendant’s sixth amendment right to counsel for the Chicago murder offense did not attach until adversarial proceedings had been instituted against him for the Chicago homicide. (Perkins, 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394; Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.) When defendant was initially questioned in May 1982, he had not yet been indicted for the Chicago murder. Consequently, he had no sixth amendment right to counsel with respect to the homicide offense when he was questioned by Cook County sheriff’s police in May 1982. People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228; United States ex rel. Espinoza v. Fairman (1987), 813 F.2d 117, 120-22.

For these reasons, we reverse the trial court’s suppression of defendant’s May 1982 statements to Cook County sheriff’s police.

Ill

The State argues that the trial court should not have suppressed defendant’s second set of incriminating statements, made to Cook County authorities in December 1983 while defendant was being returned to Illinois. We find no error in the trial court’s ruling.

According to the record, defendant was indicted for the Chicago homicide in June 1982. Upon his indictment, defendant had a sixth amendment right to counsel regarding this criminal charge. (Perkins, 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394; Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.) Thereafter, defendant waived formal extradition proceedings regarding this offense and, in his written waiver, requested that counsel be appointed to represent him. Since the defendant requested counsel in the context of his waiver of extradition proceedings pertaining to the 1981 Chicago homicide charges, defendant’s request is reasonably construed as the request for assistance of counsel for the 1981 Chicago homicide charges. Because of this invocation of his right to counsel with respect to the Chicago homicide, defendant could not be questioned regarding this offense unless defendant initiated further communication with authorities. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404.

The State also contends that the evidence of record shows that defendant volunteered his incriminating statements to Cook County authorities while defendant was being returned to Illinois in December 1983. However, defendant testified that his statements were prompted by remarks regarding the Chicago homicide that were first made by the officers who accompanied him from Texas to Illinois. It is well established that comments or remarks from police regarding a criminal investigation may rise to “interrogation” of the accused. Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308, 100 S. Ct. 1682, 1689 (interrogation includes “any words or actions on the part of the police *** that the police should know are reasonably likely to elicit an incriminating response from the suspect”).

The State does not argue that the officers’ remarks were not designed to elicit defendant’s incriminating statement. The State contends that the trial court should have discredited defendant’s testimony to the effect that it was the officers who initiated conversation regarding the Chicago homicide. However, the trial court accepted defendant’s testimony, and it is not our function to reweigh the credibility of testimony presented to the trial court at a motion to suppress hearing. (People v. Evans (1988), 125 Ill. 2d 50, 77, 530 N.E.2d 1360.) We cannot say that the trial court’s finding was against the manifest weight of the evidence, as the defendant’s testimony at the suppression hearing fully supports the trial court’s ruling. Accordingly, we conclude that the defendant’s second set of statements to authorities, in December 1983, was obtained in violation of defendant’s sixth amendment right to counsel that had accrued to and been invoked by defendant with respect to the 1981 Chicago homicide.

For the reasons stated, the order of the trial court is reversed with respect to suppression of defendant’s May 1982 statements, affirmed with respect to suppression of defendant’s December 1983 statements, and remanded for further proceedings consistent herewith.

Affirmed in part; reversed in part and remanded.

LINN and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY BURRETT, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—0450
    Opinion filed June 26,1991.

      Joshua Sachs, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Miles J. Keleher, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a jury trial, defendant Harry Burrett was found guilty of aggravated arson, arson, conspiracy and solicitation. The court sentenced him to 18 years of imprisonment.

On appeal the defendant alleges that (1) the State failed to prove that defendant knew or had reason to know that the arsoned premises were occupied as required for conviction under the aggravated arson statute; (2) the State’s closing argument on the issue of what defendant might have reasonably known was based on evidence not in the record; and (3) the sentence of 18 years was too harsh. For the reasons set forth below, we affirm.

The facts are not greatly in dispute. About 4 a.m. on July 6, 1986, the home of the Waheed family was intentionally set on fire by Molotov cocktails. John Barnes, Richard Hudgins and defendant admitted that they participated in the firebombing of the Waheed home and that racial prejudice motivated their actions.

John Barnes pleaded guilty to aggravated arson and received a six-year term of imprisonment. In his written statement to the police and his trial testimony, Barnes recounted the events surrounding the fire. The night of July 5, 1986, Barnes was drinking and socializing with friends at Richard Hudgins’ house until approximately 1:30 a.m., when Barnes and Hudgins left to go to Barnes’ house. While walking to Barnes’ house, they met defendant, who was driving down the street.

At the time of the incident, defendant was about 42 years old and for many years had resided about a block from the Waheed home. Barnes and Hudgins were both about 19 years old at the time of the crimes and had known the defendant since they were 10 and 6, respectively. For many years both had been friends of defendant’s son.

The three men (Barnes, Hudgins and defendant) then went to defendant’s home, where much of their ensuing conversation revolved around “black people moving into our block.” Bames testified that defendant suggested that “we should get them out, bum their house down, *** get some Molotov cocktail bombs and set the house on fire.” Hudgins admitted having prior discussions regarding black people moving into the neighborhood and all apparently agreed that it would be “a shame to lose the neighborhood to blacks.” Defendant stated that one or two weeks prior to this time they had talked about “scaring them by throwing something to bum.”

The statements of all three and the testimony of Hudgins and Bames acknowledge that the two young men remained in defendant’s home after he left on a mission to secure material for constmction of Molotov cocktails.

Taking a two-gallon can from his home, defendant first went to the Shell gas station at 47th and California, where he filled it with gasoline. Thereafter, he drove to a White Hen Pantry at 59th and California and obtained bottles of Pepsi-Cola.

Upon his return home, the three entered defendant’s basement, and defendant proceeded to assemble two Molotov cocktails by emptying the Pepsi out of the bottles, filling them with gasoline and placing cloth strips in the bottlenecks.

The defendant then developed a bombing strategy, i.e., one bomb to be thrown through the front of the Waheed home at the same time a second bomb would be thrown through the rear of the home. In furtherance of the plan, Bames would take the rear of the home and Hudgins the front.

Defendant provided a pair of gloves to each of the participants and a lighter to Barnes; Hudgins had his own lighter.

According to the previously established plan, Bames and Hudgins, each now armed with a homemade bomb, walked together toward the Waheed home, but separated when they neared the home so that they could each confront their respective target.

Shortly thereafter, Bames heard a bottle break followed by the appearance of Hudgins in the alley. Hudgins testified that he purposely broke his bottle because he “knew it wasn’t right.”

Bames continued to execute the plan and threw his Molotov cocktail into the back of the Waheed home.

Bames and Hudgins then returned to defendant’s house to await the arrival of police and firefighters responding to the anticipated fire.

After a half-hour of waiting, it was apparent that the bomb had not ignited. Defendant then suggested that Bames “should go back and this time go around the front, hit it again, and maybe this time it would really do something.” Thereafter, defendant fabricated a third Molotov cocktail and gave it to Barnes.

Barnes again went to the Waheed home, lit the third bomb, threw it through the front window, and returned to the defendant’s house.

This time, their efforts were more successful. Soon the trio saw flashing lights indicating the arrival of fire and police units. At that time, they sat on defendant's front porch and, after awhile, disbursed to their respective homes.

On cross-examination, Barnes claimed that he did not know anybody was home at the Waheed residence when he threw the firebombs and that, prior to that night, he had never discussed the impact of black people moving into the neighborhood. He confessed that he did not know why he had thrown the bombs; however, on redirect examination, he acknowledged that the firebombing was racially motivated, although he claimed that he had no control over his own will and that somebody else was totally controlling him and he was possessed by “booze.”

Shirley Waheed testified that she and her family moved into their three-bedroom home about March 1, 1986, four months prior to the related incident. The family consists of Shirley, her husband, brother-in-law, and four children ages 6 to 12. On the evening of July 5, 1986, the family retired for bed about 10 p.m. Mrs. Waheed was awakened at 4 a.m. when she heard her front room window break and saw flames. She unsuccessfully attempted to extinguish the fire with water. A man, later identified as Henry Szura, was driving by the home at that time, saw the fire and stopped to help extinguish the fire with a blanket taken from his car. Mrs. Waheed further testified that on the night of the firebombing, a light was on in the front room window through which the bomb was thrown and she always left a light on and that this light was fully visible from the outside of the home.

On appeal, the defendant first contends that the State did not show that he knew or reasonably should have known that the house was occupied when it was firebombed and thus was not proved guilty of aggravated arson beyond a reasonable doubt. Defendant concedes that sufficient evidence was shown to sustain his conviction for the lesser offense of arson.

The aggravated arson statute provides in relevant part that a “person commits aggravated arson when in the course of committing arson he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and (1) he knows or reasonably should know that one or more persons are present therein.” Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1.1(a)(1).

Defendant clearly knew the Waheeds were residing at 5620 South Artesian on a daily basis since the evidence established that the Waheed family moved into their house in March 1986 and the firebombing did not occur until July 1986. It was the very presence of the Waheeds in that house against which defendant reacted. Defendant’s admitted motivation for his egregious acts against the Waheeds was to get them out of the neighborhood because they were black. The evidence also revealed that the firebombing occurred about 4 a.m.; seven people, three adults and four children, lived in the Waheed home; and the vicinity where defendant and the Waheeds lived was a residential neighborhood.

Clearly, defendant is the architect of these misdeeds. He has the motive, secures the material, constructs the bombs, and gives rather precise instructions as to the manner in which the operation is to be carried out. He dispatches one young man to the front and one to the rear. Why? If his purpose is to “scare” the residents of the home, a single bomb should deliver the message to the new residents that they are not welcome in the neighborhood. The jury may certainly conclude that he might have known that the building was occupied at the time and wished to insure fires at both front and rear exit to impair escape.

Where a defendant contests the sufficiency of the evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89.

In determining that the defendant knew or reasonably should have known that the premises were occupied at the time of the fire, the jury could consider the time of the incident, the residential character of the building and the surrounding area, occupation of the premises by the Waheed family with their small children for more than four months, the method of attack selected by the defendant and the racial motivation by defendant to deliver some kind of message to his new neighbors. On these issues the trier of fact may assess the credibility of witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. Young, 128 Ill. 2d at 51.

Elements of aggravated arson may be shown by circumstantial evidence. Issues such as motive, opportunity or knowledge can be inferred from the surrounding facts of each case. People v. Rosario (1988), 166 Ill. App. 3d 383, 519 N.E.2d 1020.

In People v. Dukes (1986), 146 Ill. App. 3d 790, 497 N.E.2d 351, the trial testimony contained no direct evidence even linking the defendants to the fire and the only evidence used as a basis for defendant’s conviction was circumstantial in nature. In Dukes there was evidence that the premises were occupied and that at least one of its occupants viewed the defendants from the house, but none that would have directly shown that the defendants viewed or could have viewed the occupant. (In Dukes, the conviction for aggravated arson was vacated consistent with People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676, and People v. Johnson (1986), 114 Ill. 2d 69, 499 N.E.2d 470, which struck down the 1983 aggravated arson statute on constitutional grounds.)

Accordingly, the jury could infer that defendant knew or reasonably should have known that the Waheed home was occupied when it was firebombed and the requisite elements of aggravated arson were established.

Defendant next contends that the prosecutor made improper comments during rebuttal argument regarding defendant’s knowledge that the house was occupied when the arson was committed. The complained-of remarks by the prosecutor are as follows:

“Mr. Burrett had to drive right by 5620 Artesian [the Waheed house] to arrive at the gas station at 47th and California. And when Mr. Burrett drove in front of 5620 Artesian *** that light in the living room, that Shirley Waheed told you was on, and in fact, was on every night, and we know it was on because John Barnes told you *** through his statement, that there was a light on, Mr. Burrett saw that same light.”

Defendant argues that the evidence does not support the conclusion that defendant drove past the Waheed house and that he saw the light in the window.

Although there is evidence in the record that defendant left his house, which is south of the Waheed house, and proceeded north to 47th and California to secure the necessary gasoline, the record is silent as to his route. While it is not unreasonable to assume he took the most direct route, therefore passing the Waheed home and observing the light, such a conclusion is pure speculation.

Oft-cited People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280, reversed a conviction where the prosecutor argued, without any evidence, that fingerprints were absent from the murder weapon because defendant had the presence of mind to wipe them off with her skirt. In Beier the court held that the misstatements of facts in the record were prejudicial to the accused. Although Beier remains authority for the impropriety of a prosecutor’s arguing facts not in the record, the cases have often followed different paths.

Where the courts have concluded that the statements were enough to prejudice the outcome, a reversal has been warranted. People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629 (although acknowledging no prejudicial effect for an isolated comment, the court reversed because of cumulative impact of a number of statements that may have prejudiced the jury); People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503 (argument that hair adhered to tape on a box holding the body “was” the defendant’s hair when the forensic scientist testified that the hair “could have belonged” to defendant); People v. Curry (1975), 25 Ill. App. 3d 637, 323 N.E.2d 778 (prosecutor’s argument that defendant had passed a gun to another where there was no evidence of such a transfer).

However, where the evidence of defendant’s guilt is otherwise persuasive, prosecutors are generally afforded wide latitude in closing arguments and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) Even if the improper argument relates to a key issue, as it does in the instant case, the verdict will stand if the State introduced other evidence which could serve as a basis for proof of that key issue. (People v. Woods (1969), 114 Ill. App. 2d 348, 252 N.E.2d 717.) As we have noted elsewhere in this opinion, the State introduced evidence on a multitude of factors which would allow the jury to infer that defendant should have known that the Waheed residence was occupied at the time of the arson.

In People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504, the prosecutor’s misstatement of matters not in evidence was deemed harmless error. There the prosecutor advised the jury that an informant had previous conversations with defendant about drug sales although such occurrences were not in the record. If disclosure of such conversations did not adversely prejudice the jury in a prosecution involving the sale of a controlled substance, it is difficult to imagine that the assumption of defendant’s route to the gas station in the case at bar would warrant reversal.

The Carlson court noted that the trial court had immediately admonished the jury that counsel’s arguments were not evidence and observed that the jury had heard the evidence. A similar admonition was given by the court in the case at bar. Immediately after defense counsel’s objection to the prosecutor’s misstatement, the court stated “the jury has heard the evidence, they will rely on the evidence in reaching their decision.”

This court has recently reaffirmed the standards to apply when the defendant asserts that he was denied a fair trial due to allegedly improper closing arguments by the prosecutor. (.People v. Lewis (1990), 198 Ill. App. 3d 976, 556 N.E.2d 697.) In Lewis, this court set forth the following principles: (a) in closing argument, a prosecutor is accorded wide latitude and the scope of permissible argument is within the sound discretion of the trial judge; (b) complained-of remarks must be examined in the context of both the State’s and the defense’s arguments, but all remarks made in the closing argument must be based upon the evidence presented or reasonable inferences thereof; and (c) the test for determining whether the remarks of the prosecutor in closing argument constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. Lewis, 198 Ill. App. 3d at 982.

Like Woods and Carlson, this case is distinguished from People v. Beier. We find that the prosecutor’s remarks in this case do not constitute reversible error.

Lastly defendant asserts that the 18-year prison sentence was excessive. Defendant relies on cases where sentences were reduced due to the disparity between the punishment imposed on codefendants (e.g., People v. Hall (1973), 17 Ill. App. 3d 1, 307 N.E.2d 664), and on cases where less severe sentences were received for aggravated arson convictions (e.g., People v. Dukes (1986), 146 Ill. App. 3d 790, 497 N.E.2d 351). We find defendant’s arguments unpersuasive.

The standard used to determine whether a sentence is excessive is whether the trial judge abused his discretion. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) Aggravated arson is a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1.1(b).) The statutory sentencing range for a Class X felony is 6 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—l(aX3).) Thus defendant received the exact mid-point of the statutory limitations established for aggravated arson.

A trial judge is statutorily authorized to consider in his sentencing decision certain aggravating factors, including the need to deter others from committing the same crime. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(7).) In this case we find that the trial court properly considered the deterrence factor in imposing its sentence. The outrageous conduct of defendant, admittedly motivated by blatant racism, needs to be deterred and warrants the sentence imposed.

Defendant argues that his sentence was excessive as compared to Barnes, who received a six-year sentence after pleading guilty to aggravated arson. However, persons convicted of the same offense are not required to receive identical sentences (People v. Ashford (1988), 121 Ill. 2d 55, 88, 520 N.E.2d 332) and disparity between the sentences of equally culpable defendants is entirely proper where it is warranted by differences in the nature and extent of each defendant’s participation in the crime (People v. Williams (1989), 180 Ill. App. 3d 294, 535 N.E.2d 993).

At the sentencing hearing, defendant presented a black coworker as a witness in mitigation. The co-worker, Bonnie William Thomas, Jr., stated that he considered defendant a friend, they had visited each other’s homes and he never detected any bias on the part of defendant. To this court such testimony is in aggravation, not mitigation, since defendant’s relationship with Mr. Thomas should have shown him the irrationality of his mindset toward the Waheeds.

Defendant clearly instigated and led the attack on the Waheed family. He initially suggested burning down the home, planned the attack, purchased the required materials, manufactured the Molotov cocktails, and provided Barnes and Hudgins with gloves and a lighter and specific directions on carrying out their respective tasks.

Defendant led the attack by guiding and inducing the behavior of Barnes and Hudgins. At the time of the firebombing, Barnes and Hudgins were about 19 years old and the defendant 42. Defendant’s son Erik was the same age as the young men and both acknowledged that they had grown up in the neighborhood and been close friends with defendant’s son.

In testimony and statements, Barnes and Hudgins consistently refer to defendant as “Mr. Burrett” rather than “Harry.” He is a respected figure of authority to them.

Instead of mature guidance, they received a lesson of hate and prejudice. We are reminded of the simple message of a song from South Pacific:

“You’ve got to be taught to hate and fear.
You’ve got to be taught from year to year.
It’s got to be drummed in your dear little ear.
You’ve got to be carefully taught.
You’ve got to be taught to be afraid Of people whose eyes are oddly made,
And people whose skin is a different shade,
You’ve got to be carefully taught.
You’ve got to be taught before it’s too late,
Before you are six or seven or eight,
To hate all the people your relatives hate,
You’ve got to be carefully taught.
You’ve got to be carefully taught.” R. Rodgers & O. Hammerstein, “You’ve Got To Be Carefully Taught,” copyright 1949.

We find that the trial court did not abuse its discretion in sentencing defendant to 18 years’ imprisonment.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TELESFORD ACEVEDO, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—1443
    Opinion filed June 27,1991.

      Michael J. Pelletier and Leslie Wallin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a stipulated probation revocation hearing in the circuit court of Cook County, the trial judge revoked the probation of defendant, Telesford Acevedo. The trial court sentenced defendant to a prison term of seven years on a burglary conviction and a concurrent term of five years on a violation of bail bond conviction.

Defendant appeals, contending: (1) the probation revocation hearing deprived him of due process of law; (2) the trial court erred by sentencing him without a new presentence report; and (3) his prison sentence on the violation of bail bond must be vacated.

We affirm in part and vacate in part.

Background

The record contains the following undisputed facts. In October 1980, defendant was charged with burglary and he posted bail. On May 14, 1981, defendant failed to appear in court and also failed to surrender himself within the following 30 days. In June 1982, defendant was indicted for violating his bail bond.

On April 19, 1984, a hearing was held at which defendant was present. The trial judge explained to defendant the nature and subject matter of a pretrial conference. Defendant then authorized the State, his defense counsel, a representative of the TASC (Treatment Alternative to Street Crime) program, and the trial judge to hold a conference. At the close of the conference, defendant and the State entered into a negotiated plea agreement.

The trial judge informed defendant that he must successfully complete the TASC program to complete his probation. In other words, his failure to successfully complete the TASC program would constitute grounds for revoking probation. The trial judge advised defendant of his rights, such as the right to trial by jury and the right to confront and present witnesses. The trial judge also informed defendant that he could receive a prison sentence of between three and seven years for the burglary charge and a sentence of between two and five years for the violation of bail bond charge.

Pursuant to the plea agreement, and after the trial judge notified defendant of the consequences of his actions, defendant pled guilty to the charges of burglary and violation of bail bond. After reviewing a presentence report and a TASC report, and hearing argument, the trial court found that defendant was a drug addict. Further, defendant committed his past crimes, mostly burglaries and thefts, to support his addiction. The court also found that defendant wished to cure himself of his addiction and that he was eligible for the TASC program. The court then sentenced defendant pursuant to the plea agreement. On the burglary conviction, the court sentenced defendant to probation for a term of four years. The first six months of the probation term would be served in Cook County jail, followed by long-term residential treatment in the TASC program. On the violation of bail bond conviction, the court sentenced defendant to a concurrent probation term of 30 months. The trial judge informed defendant that if he violated probation, he would be sentenced to a prison term of five years.

In August 1984, October 1985, and September 1986, the State charged that defendant violated probation. In each case the trial court recommitted defendant to probation.

In October 1987, the State filed the petition for violation of probation from which this appeal arises. The State alleged that defendant failed to report to his probation officer, committed the offense of possessing a hypodermic, and failed to successfully complete the TASC program. On January 27, 1988, the trial court held a probation revocation hearing. The trial judge explained to defendant the nature and subject matter of a prehearing conference. Defendant then authorized his counsel, his probation officer, the State and the court to hold a conference. The trial judge again specifically advised defendant that if defendant were found guilty of violating his probation, he could be sentenced to a prison term of three to seven years on the burglary conviction and another term of two to five years on the violation of bail bond conviction; also, the sentences could run consecutively.

Immediately following the prehearing conference, the State called defendant’s probation officer to testify. However, immediately after the witness was sworn, the following colloquy occurred:

“[Defense counsel]: Excuse me one second, Judge.
(Brief pause.)
Judge, after explaining to Mr. Acevedo once again what’s involved with violations—
You want to plead guilty to the violation and take the seven years?
(Brief pause.)
THE COURT: We’ll have a hearing. If Mr. Acevedo does not want to agree to the violation of probation, we’ll have a hearing. I’m not going to force him into doing anything.”

The trial judge then repeated the charges against defendant in the State’s petition for violation of probation. The trial judge continued:

“THE COURT: Those are the charges that have been leveled against you in connection with each of these violations of probation.
If you admit to those violations, I would find you in violation of the terms and conditions of your probation and I would sentence you on the residential burglary to seven years; to five years on the violation of bail bond; and, I would have both of them served concurrently. You have heard what the conference results are.
Do you admit to those violations of probation?
THE DEFENDANT: Guess so, yeah.
THE COURT: Let the record indicate that in my opinion Mr. Acevedo has admitted, after being admonished as to the consequences, I find that the defendant has in fact violated the terms and conditions of his probation by failing to report and that’s the basis for it.”

Turning to the sentence, the court heard argument in aggravation and mitigation. The trial judge considered the existing presentence report sufficient and, therefore, did not order a new presentence investigation. In addition to the argument of defense counsel, the trial judge afforded defendant the opportunity to make a statement. At the close of the hearing, the trial judge sentenced defendant to a prison term of seven years on the burglary conviction and a concurrent term of five years on the violation of bail bond conviction. Defendant appeals.

Opinion

I

Defendant first claims that the probation revocation hearing denied him due process of law.

A

As its initial response, the State argues that defendant waived this issue for review by failing to object at the hearing or in a post-hearing motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) However, Supreme Court Rule 615(a) provides an exception to the waiver rule where there has been “plain error.” (134 Ill. 2d R. 615(a).) Under this rule, we may elect to consider errors that have not been properly preserved for review where those errors affect substantial rights. People v. Brantley (1976), 43 Ill. App. 3d 616, 617-18, 357 N.E.2d 105,107.

In the case at bar, defendant alleges due process deprivations that affect his fundamental right to liberty. This court, as a result, has elected to review such alleged errors under Rule 615(a). 134 Ill. 2d R. 615(a); People v. Cox (1990), 197 Ill. App. 3d 239, 241-42, 554 N.E.2d 360, 362.

B

Of course, a probationer is entitled to due process of law at a probation revocation hearing. However, it is well established that only “minimum requirements” of due process need be applied at a probation revocation hearing. (People v. Beard (1974), 59 Ill. 2d 220, 225, 319 N.E.2d 745, 747; People v. Kaminski (1975), 30 Ill. App. 3d 180, 182, 332 N.E.2d 182, 184.) This rule is based on the qualitative difference between a criminal prosecution and the revocation of probation. Guilt or innocence is not determined at a probation revocation hearing. Rather, the proceeding takes place only after the probationer has already been convicted, sentenced to probation, and then is charged with violating the conditions of his probation. Cox, 197 Ill. App. 3d at 243, 554 N.E.2d at 363, citing People v. Allegri (1985), 109 Ill. 2d 309, 313, 487 N.E.2d 606, 607.

Defendant contends that due process required the trial court, at a minimum, to establish a factual basis for his violation of probation, to admonish him of his right to a hearing, and to determine that his admission was not the result of promises or coercion. We disagree. These due process safeguards are required by Supreme Court Rule 402 when a criminal defendant pleads guilty at trial. (134 Ill. 2d R. 402.) However, Rule 402 requirements were formulated to ensure the entry of proper guilty pleas at trial. Since a probation revocation qualitatively differs from a criminal conviction, Rule 402 does not apply to probation revocation hearings. Beard, 59 Ill. 2d at 226-27, 319 N.E.2d at 748; Cox, 197 Ill. App. 3d at 243, 554 N.E.2d at 363.

Due process at a probation revocation hearing does require that the probationer have notice of the alleged violations, and that revocation follows a hearing at which the probationer had an opportunity to be heard, present evidence, confront witnesses, and be represented by counsel. These requirements all boil down to fairness. In other words, “due process requires a fair determination that the acts which formed the basis for the revocation petition did occur and that fairness be accorded a defendant during the proceedings.” Cox, 197 Ill. App. 3d at 243, 554 N.E.2d at 363 (and cases cited therein).

Applying these principles to the case at bar, we conclude that defendant’s probation revocation hearing was fundamentally fair. Defendant was represented by counsel and had notice of the alleged violations. Defendant knowingly and intelligently authorized the prehearing conference. At the close of the conference, defendant had the opportunity to have a contested hearing. Indeed, the record shows that he was in the midst of a contested hearing when he agreed to stipulate. Further, defendant stipulated only to the evidence that his probation officer would present. He did not stipulate as to the outcome of the court’s determination. This distinguishes the case at bar from People v. Followell (1987), 165 Ill. App. 3d 28, 518 N.E.2d 706, upon which defendant relies.

Defendant contends that he was denied due process of law also because the trial court predetermined his sentence if his probation were revoked. Defendant refers to the several instances in the record where the trial judge advised defendant that if he violated probation, he would receive a prison sentence of either five or seven years. These instances date back to when the trial judge first sentenced defendant to probation. Defendant argues that “the sentencing hearing following revocation of probation was a sham, for the judge had long before decided what sentence he would impose, even though at the time he decided upon the sentence he had no idea what the nature of the probation violation might be, and had heard no evidence or argument in mitigation.”

We cannot accept this contention. It is well settled that the sentence imposed upon revocation of probation is for the original crime; it is not punishment for the conduct that led to the revocation proceedings. Thus, once probation is revoked, the trial court may sentence the defendant to any disposition that would have been appropriate for the original offense. People v. Newell (1982), 105 Ill. App. 3d 330, 334-35, 434 N.E.2d 349, 353-54.

This case is distinguishable from People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, upon which defendant relies. In each of the two probation revocation hearings reviewed in Harris, the trial court sentenced the defendant without the benefit of a presentence report and without knowledge of the facts surrounding the violation. (105 Ill. 2d at 294-96, 473 N.E.2d at 1293-94.) In the case at bar, however, the trial judge sentenced defendant after reviewing a pre-sentence report, hearing argument, and affording defendant an opportunity to make a statement. We hold that defendant received due process of law at the probation revocation hearing.

II

Defendant next claims that the trial court erred by sentencing him without a new presentence report. He argues that the four-year-old original report was too old to be the basis of a meaningful sentence.

We initially note that defendant failed to object to the use of the original report in lieu of a new one. Additionally, defendant failed to raise this issue by motion following the sentencing. Thus, defendant has waived this issue for review. People v. Moore (1987), 159 Ill. App. 3d 1070, 1075, 513 N.E.2d 87, 91; People v. Burba (1985), 134 Ill. App. 3d 228, 238, 479 N.E.2d 936, 943.

Even if the issue is not waived, the record shows that the trial court considered current information to make a meaningful sentence. The trial judge was familiar with defendant’s case based on several prior proceedings. Additionally, the trial judge heard defense counsel’s argument in mitigation and afforded defendant an opportunity to provide further mitigating information through his own statement. (See People v. Torres (1986), 146 Ill. App. 3d 250, 255, 496 N.E.2d 1060, 1063 (and cases cited therein).) We hold that the trial judge did not err in failing to order a new presentence report specifically for this case.

Ill

Defendant lastly claims that the trial court’s revocation of probation and five-year prison sentence on the violation of bail bond conviction must be vacated. He notes that the court imposed the 30-month probation term on April 19, 1984. The term expired on October 19, 1986. Further, the court revoked probation and imposed the prison sentence on January 27, 1988, long after the 30-month probation term expired. Defendant argues that, as a result, the trial court lacked jurisdiction to revoke probation and sentence him on the violation of bail bond conviction.

The State agrees with defendant that the revocation of probation and the imposition of the concurrent five-year prison sentence on the violation of bail bond conviction was error. (See People v. Martinez (1986), 150 Ill. App. 3d 516, 501 N.E.2d 1003.) Therefore, we vacate the revocation of probation and five-year prison sentence on the violation of bail bond conviction. (134 Ill. 2d R. 615(b).) What remains is the court’s revocation of probation and seven-year prison sentence on the burglary conviction.

We further note that we need not remand the cause for re-sentencing. The trial court sentenced defendant separately on each conviction, and the record does not otherwise show that the trial court considered the vacated finding and sentence in finding a violation of probation and sentencing defendant to a seven-year prison term on the burglary conviction. See People v. Fosdick (1988), 166 Ill. App. 3d 491, 501, 519 N.E.2d 1102, 1110.

For the foregoing reasons, the judgment of the circuit court of Cook County, which revoked defendant’s probation and imposed a seven-year prison sentence on his burglary conviction, is affirmed. That part of the judgment which revoked probation and imposed a five-year prison sentence on the violation of bail bond conviction is vacated.

Affirmed in part and vacated in part.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE JOHNSON

text:
    KATHY FRANKEL, Plaintiff-Appellant, v. OTISWEAR, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 89—3534
    Opinion filed June 27,1991.
    — Rehearing denied August 5,1991.

      Murphy & Boyle, Chartered, of Chicago (Robert D. Boyle, Morgan F. Murphy III, and Mark R. Valley, of counsel), for appellant.
    William Carlisle Herbert, E. Glenn Rippie, and Karen A. Dort, all of Hopkins & Sutter, of Chicago, for appellee Resolution Trust Corporation.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Kathy Frankel, appeals the order of the circuit court of Cook County denying her motion for a rehearing pursuant to section 2 — 1203 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203), and her alternative request to file a fourth amended complaint against defendants, Otiswear, Inc., and Skokie Federal Savings and Loan Association. In addition, plaintiff challenges the trial court’s dismissal of her third amended complaint pursuant to section 2 — 615 of the Code. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.

The following issues are before this court for review: (1) whether this court has jurisdiction over this cause; (2) whether plaintiff’s claims are barred by collateral estoppel; (3) whether the trial court erred when it dismissed count II of plaintiff’s third amended complaint that prayed for the court to impose a constructive trust on the treasury note; (4) whether the trial court properly dismissed count XI of plaintiff’s third amended complaint, which was an action for replevin of the treasury note; (5) whether the trial court erred when it dismissed count XII of plaintiff’s third amended complaint for negligence against Skokie Federal Savings and Loan Association; and (6) whether plaintiff has waived her right to assert allegations that Skokie Federal Savings and Loan Association violated suretyship laws, whether its security interest in the collateral was perfected, and whether renewals of the treasury note by it may be maintained pursuant to the hypothecation agreement.

We affirm.

Background

On July 21, 1986, plaintiff executed a hypothecation agreement which assigned a treasury note to Otiswear, Inc. (Otiswear), in order to allow it to pledge the treasury note as collateral for loans. A hypothecation agreement is an agreement whereby one party pledges specific property as collateral or security for a debt. The lender is not given title to the pledged property; however, the lender may sell the pledged property upon the debtor’s default. Black’s Law Dictionary 669 (5th ed. 1979).

The hypothecation agreement states, in pertinent part:

“Gentlemen: *** for the purpose of enabling said borrower [Otiswear] to obtain credit *** I [Kathy Frankel] do hereby assign, release and transfer unto said borrower all of my right, title and interest in and to said property [the treasury note], and hereby expressly authorize said borrower to pledge or hypothecate all or any part of said property for the indebtedness aforesaid ***.
Furthermore, I request that you give, or continue to give said borrower, credit in the form of loans or renewals, or extensions as aforesaid, and in consideration of all or any such credit so granted by you, I agree that all or any property pledged or hypothecated as aforesaid, shall be subject in your hands or those of your assignees ***. The proceeds of all loans shall be accounted for and paid over to the borrower aforesaid, and said collateral securities may be disposed of and/or paid over, to or upon the direction of said borrower.”

Contemporaneous with the signing of the hypothecation agreement, Otiswear signed a treasury note due on June 30, 1987, in the amount of $92,000, payable to the First National Bank of Morton Grove. Pursuant to the hypothecation agreement, plaintiff pledged the treasury note as collateral for a loan to Otiswear. Plaintiff was given stock in Otiswear by its owner, Steven Otis, in consideration for her execution of the hypothecation agreement.

Approximately one year after obtaining the loan from the First National Bank of Morton Grove, Otis asked Skokie Federal Savings and Loan Association (Skokie Federal) to refinance the debt of Otis-wear. Unbeknownst to plaintiff, Otis used the hypothecation agreement to obtain a $150,000 line of credit from Skokie Federal. Otis agreed to maintain the treasury note as collateral for the loan. A majority of the proceeds of the loan from Skokie Federal were paid to the First National Bank of Morton Grove to close out its loan. Then, the First National Bank of Morton Grove transferred its interest in the treasury note to Skokie Federal. After the treasury note matured, Skokie Federal purchased a substitute treasury note from the proceeds of the treasury note identified in the hypothecation agreement.

Plaintiff was not informed of the aforementioned transactions involving Skokie Federal. Otis later defaulted on his commercial line of credit at Skokie Federal. After plaintiff’s relationship with Steven Otis deteriorated, plaintiff filed suit against him, Otiswear, and Skokie Federal in an effort to recover the treasury note. However, Steven Otis is no longer a defendant in this action.

On March 9, 1988, plaintiff filed a complaint for a writ of mandamus, and a complaint for permanent and preliminary injunctive relief. The subject matter of the complaint was the treasury note owned by plaintiff.

On April 8, 1988, plaintiff filed an amended complaint which included, inter alia, count I for the imposition of a constructive trust on the treasury note, count II for replevin of the treasury note against Skokie Federal, count IV for negligence, and count V against Skokie Federal for conversion. Skokie Federal filed an answer to the amended complaint and a counterclaim against Steven Otis. In paragraph 5 of Skokie Federal’s counterclaim, it alleged that Otis represented that he was the sole owner of the treasury note free from any lien, security interest, encumbrance, or claim.

On June 24, 1988, the trial court granted defendants’ motion to strike count I of the amended complaint and granted plaintiff 14 days to file an amended pleading. This order made no rulings on any other issues raised in defendants’ motion.

On July 12, 1988, plaintiff filed a second amended complaint, to which Skokie Federal filed an answer. On March 27, 1989, the trial court dismissed plaintiff’s second amended complaint.

On April 21, 1989, plaintiff filed a third amended complaint. Count II prayed for the imposition of a constructive trust on the treasury note, count XI was an action for replevin of the treasury note, and count XII was a complaint for negligence against Skokie Federal.

Skokie Federal then filed a motion to dismiss pursuant to section 2 — 615 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) Skokie Federal based its motion to dismiss upon allegations that the third amended complaint failed to state causes of action, that the hypothecation agreement barred any claim for wrongful possession, and that it owed no duty to plaintiff. On September 27, 1987, the trial court dismissed plaintiff’s third amended complaint with prejudice.

The trial court made the following ruling:

“It is not apparent from what has been pled[ ] *** that this litany of grievances *** amounts to a fraudulent scheme when the events are extracted from a relationship three years in duration.
*** There is no allegation that the sole purpose of all of these events that are listed in this complaint were toward the purpose of manipulating the hypothecated agreement, and there is no suggestion that the sole purpose of the representations were in aid of any illegal contract.
Additional doubt as to the existence of any scheme arises from the recent disclosure that the hypothecation agreement was executed in exchange for an agreement for stock in the company. Simply stated, the promise to pay back, the note being used as collateral, was a promise of future conduct, which cannot constitute a material misrepresentation in support of alleged fraud. The facts alleged here do not demonstrate any fraudulent scheme. *** There is no constructive trust which can arise from this scattershot allegation because no fraud has been established. There is no constructive trust because the hypothecation agreement is clear and unambiguous on its face, and the Plaintiff cannot be given credit for not knowing what she clearly had known when she signed it.
For all of these reasons, Defendant’s motion to strike and dismiss the complaint with prejudice is granted.”

Plaintiff timely filed a motion for a rehearing pursuant to section 2 — 1203 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203), which sought to vacate the trial court’s dismissal order entered on September 27, 1989, or, alternatively, to grant plaintiff leave to file a fourth amended complaint on November 28, 1989. On November 28, 1989, the trial judge denied plaintiff’s motion. A timely notice of appeal was filed on December 22,1989.

On February 1, 1990, the Office of Thrift Supervision placed Skokie Federal into receivership and appointed the Resolution Trust Corporation (the RTC) its receiver. The RTC as Skokie Federal’s receiver is now a proper defendant in this action.

Opinion

I

Defendants have correctly noted that plaintiff failed to include a statement of the jurisdictional basis for this appeal in her brief as required by Illinois Supreme Court Rule 341 (e)(4)(i), which reads as follows:

“(e) *** The appellant’s brief shall contain the following parts in the order named:
* * *
(4) A statement of jurisdiction:
(i) In a case appealed *** as a matter of right from the Appellate Court, a brief statement under the heading ‘Jurisdiction’ of the jurisdictional grounds for the appeal ***.” 134 Ill. 2d R. 341(e)(4)(i).

See also Lindahl v. City of Des Plaines (1991), 210 Ill. App. 3d 281, 288.

Although plaintiff failed to submit a jurisdictional statement in compliance with Rule 341(e)(4), we find that this court has jurisdiction over this appeal pursuant to Illinois Supreme Court Rule 301. Rule 301 reads, in pertinent part, as follows:

“Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional.” 134 Ill. 2d R. 301.

See also Lindahl, 210 Ill. App. 3d at 288.

This court has jurisdiction over this appeal because a final judgment of dismissal was entered on counts II, XI, and XII of plaintiff’s third amended complaint on September 27, 1989. On that same date, the trial court certified the judgment in favor of Skokie Federal as final. Therefore, this court has jurisdiction over this cause.

II

Defendants next maintain that the doctrine of collateral estoppel precludes plaintiff from pursuing this appeal. Defendants maintain that the collateral estoppel doctrine is applicable because the trial court determined on the merits that plaintiff had no cause of action against Mr. Otis for fraud, and because the trial court conclusively determined that Otiswear properly pledged the treasury note to Skokie Federal in accordance with the hypothecation agreement. Defendants rely upon Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, Chidester v. Cagwin (1966), 76 Ill. App. 2d 477, and Elston-Damen Currency Exchange, Inc. v. Sheon (1964), 46 Ill. App. 2d 218.

Plaintiff contends that the doctrine of collateral estoppel is inapplicable. Plaintiff relies upon Service Systems Corp. v. Van Bortel (1988), 174 Ill. App. 3d 412, In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, and Collins v. St. Jude Temple No. 1 (1987), 157 Ill. App. 3d 708.

“Collateral estoppel precludes parties from relitigating an issue in a subsequent proceeding where that issue was actually or necessarily decided by a court of competent jurisdiction in an earlier proceeding involving the same parties in a different cause of action.” (Emphasis in original.) Hammond v. North American Asbestos Corp. (1991), 207 Ill. App. 3d 556, 562; see also Collins, 157 Ill. App. 3d at 710; Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App. 3d 1077, 1082.

“ ‘The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.’ ” (Emphasis in original.) Stone v. Salvage & Bridges Agency, Inc. (1990), 206 Ill. App. 3d 615, 619, quoting Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252; see also Service Systems Corp. v. Van Bortel (1988), 174 Ill. App. 3d 412, 418.

“The burden of establishing the defense of collateral estoppel is on the party invoking it.” (Hammond v. North American Asbestos Corp. (1991), 207 Ill. App. 3d 556, 562.) The doctrine of collateral estoppel may be invoked under the following circumstances: “(1) [where] the issue decided in the prior adjudication is identical with the one presented in the current suit; (2) the prior suit was terminated with a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party in the prior suit.” In re Nau (1991), 209 Ill. App. 3d 805, 811; see also Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7; Chidester v. Cagwin (1966), 76 Ill. App. 2d 477, 486.

In the instant case, the doctrine of collateral estoppel is inapplicable. Defendants have failed to meet their burden of proof. (See Hammond, 207 Ill. App. 3d at 562.) Although the prior action was terminated on the merits, and the party against whom estoppel was asserted was a party in the previous suit, the issues decided in the prior adjudication are not identical to the ones presented in this appeal. (See In re Nau, 209 Ill. App. 3d at 811.) The issues brought before the trial court were actions for the imposition of a constructive trust, replevin of the treasury note, and negligence by Skokie Federal. However, the issue on appeal is whether the trial court erred and abused its discretion by dismissing the aforementioned counts of plaintiff’s third amended complaint pursuant to section 2 — 615 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) Furthermore, this cause does not involve “two separate and consecutive cases arising on different causes of action.” (Emphasis in original.) Stone v. Salvage & Bridges Agency, Inc. (1990), 206 Ill. App. 3d 615, 619.

In addition, we find defendants’ reliance upon Elston-Damen Currency Exchange, Inc. v. Sheon (1964), 46 Ill. App. 2d 218, and Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, inappropriate. These cases are distinguishable from the case at bar because they both concern the doctrine of res judicata. Keim, 57 Ill. App. 3d at 624; Elston-Damen Currency Exchange, Inc., 46 Ill. App. 2d at 222.

The doctrine of res judicata is distinguishable from the doctrine of collateral estoppel. “The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent litigation between the same parties or their privies on matters found to be part of the same cause of action.” (Bismarck Hotel Co. v. Sutherland (1988), 175 Ill. App. 3d 739, 744; see also In re Marriage of Firestone (1987), 158 Ill. App. 3d 887, 891.) We find that res judicata and collateral estoppel are distinguishable because the collateral estoppel doctrine specifically prohibits the relitigation of certain issues (see Hammond v. North American Asbestos Corp. (1991), 207 Ill. App. 3d 556, 562), while the doctrine of res judicata specifically prohibits the relitigation of certain rules of law. (See Bismark Hotel Co., 175 Ill. App. 3d at 744.) Accordingly, we find that the doctrine of collateral estoppel does not preclude this court from hearing this appeal.

III

We will now address the question of whether the trial court erred when it dismissed count II of plaintiff’s third amended complaint, which prayed for the court to impose a constructive trust upon the treasury note. Plaintiff argues that count II of her third amended complaint was properly pleaded and erroneously dismissed by the trial court because the record showed that Skokie Federal possessed constructive notice of Steven Otis’ fraud, and that Skokie Federal was not a bona fide purchaser for value of the note. Plaintiff relies upon Oscar Gruss & Son v. First State Bank (7th Cir. 1978), 582 F.2d 424, Compton v. Compton (1953), 414 Ill. 149, Roth v. Carlyle Real Estate Limited Partnership VII (1984), 129 Ill. App. 3d 433, Sadacca v. Monhart (1984), 128 Ill. App. 3d 250, City of Chicago v. Roppolo (1983) , 113 Ill. App. 3d 602, Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111 (1981) , 96 Ill. App. 3d 1062, and the Restatement of Restitution §174, Comment a, at 492 (1937).

Defendants maintain that the dismissal of count II should be affirmed because plaintiff did not allege a confidential relationship, because plaintiff did not allege that Skokie Federal committed fraud, because plaintiff did not allege facts showing that Mr. Otis or Otiswear committed fraud, because Skokie Federal was a bona fide purchaser for value of the treasury note, and because plaintiff’s claim is barred by Federal law. Defendants rely upon D’Oench, Duhme & Co. v. Federal Deposit Insurance Corp. (1942), 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676, Federal Deposit Insurance Corp. v. Newhart (8th Cir. 1989), 892 F.2d 47, Federal Deposit Insurance Corp. v. Langley (5th Cir. 1986), 792 F.2d 541, Chatham Ventures, Inc. v. Federal Deposit Insurance Corp. (5th Cir. 1981), 651 F.2d 355, Oscar Gruss & Son v. First State Bank (7th Cir. 1978), 582 F.2d 424, Castleglen, Inc. v. Commonwealth Savings Association (D. Utah 1989), 728 F. Supp. 656, Federal Deposit Insurance Corp. v. Simon (N.D. Ill. 1985), 607 F. Supp. 1254, Securities & Exchange Comm’n v. Investors Security Leasing Corp. (W.D. Pa. 1976), 415 F. Supp. 745, Sadacca v. Monhart (1984) , 128 Ill. App. 3d 250, Bank of Lincolnwood v. Comdisco, Inc. (1982) , 111 Ill. App. 3d 822, Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, Edwards v. Miller (1978), 61 Ill. App. 3d 1023, Zickur v. Irminger (1973), 15 Ill. App. 3d 805, and Compton v. Compton (1953), 414 Ill. 149. Defendants also rely upon section 1823 of the Federal Deposit Insurance Corporation Act (12 U.S.C. §1823 (1988)), the Restatement of Restitution §172, Comment c, at 483 (1937), and the Restatement of Restitution §174, Comment a, at 492 (1937).

“A constructive trust is a restitutionary remedy to restore to a plaintiff property of which he has been unjustly deprived and to take from the defendant property which, if retained, would unjustly enrich him. [Citations.] Constructive trusts are divided into two general classes: one in which actual fraud is considered as equitable grounds for raising the trust, and the other, where there exists a fiduciary or confidential relationship and a subsequent abuse of such relationship.” (Edwards, 61 Ill. App. 3d at 1026.) Plaintiff has correctly noted that some courts have imposed a constructive trust in absence of proof of fraud or the breach of a confidential relationship. (Roth v. Carlyle Real Estate Limited Partnership VII (1984), 129 Ill. App. 3d 433, 438; City of Chicago v. Roppolo (1983), 113 Ill. App. 3d 602, 609; Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. Ill (1981), 96 Ill. App. 3d 1062, 1066-67.) However, our supreme court has mandated that “a constructive trust arises only when fraud is proved or when there is a fiduciary relationship in which the dominant party took advantage of the other.” Compton, 414 Ill. at 157.

Proof of a confidential or fiduciary relationship requires a showing that one party has placed his trust and confidence in another party who gains influence over him. (Northern Trust Co. v. Burlew (1988), 171 Ill. App. 3d 1000, 1003; Edwards, 61 Ill. App. 3d at 1027.) Proof of a fiduciary or confidential relationship is generally established by alleging facts which prove that the parties had an antecedent relationship which fostered the relationship. (Edwards, 61 Ill. App. 3d at 1027.) “[W]here [such a] relationship does not exist as a matter of law (e.g., attorney-client), it must be proved by clear and convincing evidence in order to establish a basis for raising a constructive trust [citations].” Edwards, 61 Ill. App. 3d at 1027.

“Fraud must be pleaded with specificity, particularity and certainty and must apprise the opposite party of what he is called upon to answer [citation].” (Zickur v. Irminger (1973), 15 Ill. App. 3d 805, 806-07.) Following are the elements of a cause of action for common law fraud: “(1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citations.] Furthermore, the reliance by the other party must be justified ***.” Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286; see also Zickur, 15 Ill. App. 3d at 807.

“ ‘[E]quity imposes a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrong-doer, but as long as it can be followed and identified in whose-soever hands it may come, except those of a bona fide purchaser for value.’ ” (Sadacca v. Monhart (1984), 128 Ill. App. 3d 250, 256, quoting 4 J. Pomeroy, Equity Jurisprudence §1051, at 113 (5th ed. 1941).) A “[b]ona fide purchaser for value is one who, without notice of another’s claim of right to, or equity in, property prior to his acquisition of title, has paid vendor a valuable consideration.” Black’s Law Dictionary 161 (5th ed. 1979).

In the instant case, plaintiff does not allege any basis for a confidential or fiduciary relationship between herself and defendants. (See Compton v. Compton (1953), 414 Ill. 149, 157; Edwards v. Miller (1978), 61 Ill. App. 3d 1023, 1027.) Nor did plaintiff produce proof which established the existence of a confidential or fiduciary relationship between herself and defendants. (See Edwards, 61 Ill. App. 3d at 1027.) In addition, plaintiff did not properly allege a claim of fraud against Skokie Federal. (See Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286; Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 829; Zickur v. Irminger (1973), 15 Ill. App. 3d 805, 806-07.) In addition, the trial court’s dismissal of the complaint for a constructive trust was proper because defendant Skokie Federal was a bona fide purchaser for value of the treasury note. See Sadacca, 128 Ill. App. 3d at 256.

However, we find that defendants’ claim that plaintiff’s constructive trust claim is barred by Federal law is erroneous. In D’Oench, Duhme & Co. v. Federal Deposit Insurance Corp. (1942), 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676, the United States Supreme Court found that an undisclosed secret verbal agreement may not be used as a defense in an action by the Federal Deposit Insurance Corporation to recover on a note acquired by it from another bank. D’Oench, Duhme & Co., 315 U.S. at 460-62, 86 L. Ed. at 963-64, 62 S. Ct. at 681.

Subsequently, the D’Oench, Duhme & Co. ruling was expanded and codified in section 1823 of the Federal Deposit Insurance Corporation Act. (12 U.S.C.A. §1823 (West 1989).) Section 1823 makes the following provisions:

“No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section *** either as security for a loan or by purchase or as receiver of any insured depository institution, shall be valid against the Corporation unless such agreement—
(1) is in writing,
(2) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution[.]” 12 U.S.C.A. §§ 1823(e)(1), (e)(2) (West 1989).

In addition, subsequent Federal cases have protected the ETC and the Federal Deposit Insurance Corporation from any claim that the documents, assets and official records of an insolvent financial institution do not reflect the true agreement of the parties. Federal Deposit Insurance Corp. v. Newhart (8th Cir. 1989), 892 F.2d 47, 49; Federal Deposit Insurance Corp. v. Langley (5th Cir. 1986), 792 F.2d 541, 545; Chatham Ventures, Inc. v. Federal Deposit Insurance Corp. (5th Cir. 1981), 651 F.2d 355, 361; Castleglen, Inc. v. Commonwealth Savings Association (D. Utah 1989), 728 F. Supp. 656, 662-64; Federal Deposit Insurance Corp. v. Simon (N.D. Ill. 1985), 607 F. Supp. 1254,1257.

Defendants maintain that plaintiff’s constructive trust claim depends on the contention that the hypothecation agreement does not reflect her true intent with respect to the use of the treasury note. We find that this assertion is erroneous because plaintiff maintains that the language of the hypothecation agreement was sufficient to alert Skokie Federal of her ownership interest in the government security, especially in light of the fact that the agreement did not contain an express grant to Otiswear to transfer the treasury note from the First National Bank of Morton Grove to Skokie Federal, and because the repeated references to the First National Bank of Morton Grove indicate that the entire hypothecation agreement was addressed solely to the First National Bank of Morton Grove with the expectation that the treasury note would be used only by the First National Bank of Morton Grove. Plaintiff does not contend that the hypothecation agreement does not reflect the true agreement of the parties with respect to the use of the treasury note.

For the aforementioned reasons, the trial court’s dismissal of count II should be affirmed.

IV

Next, plaintiff alleges that the trial court erroneously dismissed count XI of her third amended complaint, which was an action for replevin of the treasury note. Plaintiff and defendant Skokie Federal rely upon section 19 — 104 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 19 — 104), and International Harvester Credit Corp. v. Helland (1985), 130 Ill. App. 3d 836. Defendants also rely upon Wysocki v. Be drosian (1984), 124 Ill. App. 3d 158, Laue v. Leifheit (1983), 120 Ill. App. 3d 937, and Blum v. City of Chicago (1970), 126 Ill. App. 2d 228.

A person may bring an action for replevin to recover his chattel from one who has wrongful possession of the chattel. (International Harvester Credit Corp., 130 Ill. App. 3d at 838.) Section 19— 104 of the Code states the following:

“An action of replevin shall be commenced *** which describes the property to be replevied and states that the plaintiff in such action is the owner of the property so described, or that he or she is then lawfully entitled to the possession thereof, and that the property is wrongfully detained by the defendant, and that the same has not been .taken for any tax, assessment, or fine levied by virtue of any law of this State[] *** against the goods and chattels of such plaintiff subject to such lawful process, nor held by virtue of any order for replevin against such plaintiff.” Ill. Rev. Stat. 1987, ch. 110, par. 19 — 104.

Furthermore, section 2 — 606 of the Code makes the following provision with respect to exhibits and pleadings: “[T]he exhibit constitutes a part of the pleading for all purposes.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 606.) An exhibit is a component of a pleading for purposes of a motion to dismiss. Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 162; Laue v. Leifheit (1983), 120 Ill. App. 3d 937, 946.

We find that count XI of plaintiff’s third amended complaint was properly dismissed because plaintiff’s replevin claim is barred by the hypothecation agreement. Although plaintiff maintains that she alleged each of the requisite elements of replevin, the pledge of the treasury note as collateral was not wrongful pursuant to the hypothecation agreement. The hypothecation agreement has the following relevant provision:

“[F]or the purpose of enabling said borrower [Otiswear] to obtain credit *** I do hereby assign, release and transfer unto said borrower all of my right, title and interest in and to said property [the treasury note], and hereby expressly authorize said borrower to pledge or hypothecate all or any part of said property for the indebtedness aforesaid ***.”

Plaintiff attached the hypothecation agreement as an exhibit to the third amended complaint, incorporating its terms as allegations of the complaint for all purposes, including a motion to dismiss. (See Wysocki, 124 Ill. App. 3d at 162; Laue, 120 Ill. App. 3d at 946.) Therefore, Skokie Federal was not in wrongful possession of the treasury note. Accordingly, we rule that the trial court’s dismissal of plaintiff’s complaint for replevin was proper. See Blum v. City of Chicago (1970), 126 Ill. App. 2d 228, 230.

V

Plaintiff next alleges that the trial court erroneously dismissed count XII of her third amended complaint, which was an action against defendant Skokie Federal for negligence. Plaintiff maintains that defendant, Skokie Federal, owed her a duty to inquire as to Steven Otis’ authority to transfer the treasury note because she was a third-party owner of property which was pledged to the bank as collateral for the debt of another. Plaintiff fails to cite any Illinois case which rules that a bank has a duty to a third-party owner of collateral which is pledged as an accommodation for the maker of a note. Defendants rely upon Northern Trust Co. v. Burlew (1988), 171 Ill. App. 3d 1000, and Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78.

“Necessary to any recovery based on negligence is the existence of a duty to conform to a certain standard of conduct for the protection of the plaintiff. [Citations.] It is not sufficient that the plaintiff’s complaint merely alleges that a duty exists; the plaintiff must state facts from which the law will raise a duty.” Swett, 169 Ill. App. 3d at 82.

The relationship between a bank and a third party who pledges collateral for a loan is “an ordinary debtor-creditor relationship.” (Northern Trust Co. v. Burlew (1988), 171 Ill. App. 3d 1000, 1003.) In order to establish the existence of a fiduciary relationship, a party must demonstrate that it placed confidence and trust in another who thereby obtained superiority or influence over said party. Northern Trust Co., 171 Ill. App. 3d at 1003; Edwards v. Miller (1978), 61 Ill. App. 3d 1023,1027.

In count XII, plaintiff alleged that “Skokie Federal had a duty to obtain Frankel’s consent to use of the T-Note and to have her execute a new hypothecation agreement.” However, plaintiff failed to allege facts which would demonstrate that defendant Skokie Federal had a duty to her. Absent this fundamental element, a negligence claim fails. (See Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 82.) In addition, plaintiff had no fiduciary or confidential relationship with defendant Skokie Federal. (See Northern Trust Co., 171 Ill. App. 3d at 1003; Edwards, 61 Ill. App. 3d at 1027.) Accordingly, we rule that the trial court's dismissal of count XII of plaintiff’s third amended complaint was proper.

VI

Finally, we turn our attention to plaintiff’s allegations that defendant Skokie Federal violated suretyship laws, that its security interest in the collateral was not perfected, and that renewals of the treasury note may not be maintained under the hypothecation agreement. Plaintiff relies upon In re Martin Grinding & Machine Works, Inc. (7th Cir. 1986), 793 F.2d 592, In re Marriage of Rodriguez (1988), 175 Ill. App. 3d 241, Suslick v. Rothschild Securities Corp. (1987), 164 Ill. App. 3d 589, Polen v. Cullom Capital Woodworking, Inc. (1987), 154 Ill. App. 3d 685, Michael v. First Chicago Corp. (1985), 139 Ill. App. 3d 374, Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, Rahill Corp. v. Urbanski (1984), 123 Ill. App. 3d 769, Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, Watkins Products, Inc. v. Walter (1973), 11 Ill. App. 3d 417, Ocean National Bank v. Diment (Me. 1983), 462 A.2d 35, and Val-U Construction Co. of South Dakota, Inc. v. Contractors, Inc. (Neb. 1983), 328 N.W.2d 774.

Defendants maintain that plaintiff has waived her right to appellate review of these allegations. Defendants rely upon Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, and Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541.

“It is axiomatic that questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal.” (Western Casualty & Surety Co., 105 Ill. 2d at 500; see also Shell Oil Co., 95 Ill. 2d at 550; Suslick v. Rothschild Securities Corp. (1987), 164 Ill. App. 3d 589, 592.) Plaintiff has claimed that she is a surety for the very first time before this court. Similarly, the contentions regarding perfection and the use of renewals of the treasury note were not alleged in plaintiff’s third amended complaint or raised in response to defendant Skokie Federal’s motion to dismiss. Instead, these contentions were introduced for the first time in plaintiff’s motion for rehearing. Accordingly, we rule that plaintiff has waived her right to appellate review of her allegations that defendant Skokie Federal violated suretyship laws, that its security interest in the collateral was not perfected, and that renewals of the treasury note cannot be maintained under the hypothecation agreement.

For the aforementioned reasons, we affirm the trial court’s verdict.

Affirmed.

LINN and McMORROW, JJ., concur.