text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUTHER C. JONES, JR., Defendant-Appellant.
    Third District
    No. 3—90—0238
    Opinion filed June 27, 1991.
    Rehearing denied August 13, 1991.

      Charles K. Piet, of Chicago, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay P. Hoffman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant, Luther C. Jones, Jr., was charged with unlawful possession with intent to deliver more than 15 grams of a substance containing cocaine. He was found guilty after a bench trial of the lesser offense of possession with intent to deliver between 1 and 15 grams of a substance containing cocaine. Defendant was subsequently sentenced to serve an extended term of 30 years in prison. In this appeal, defendant raises four issues: (1) whether the State’s evidence was sufficient on the question of defendant’s intent to deliver; (2) whether the State’s evidence was sufficient on the question of defendant’s possession; (3) whether defendant was denied his right to a speedy trial; and (4) whether the court erroneously denied defendant’s motion to quash his arrest. We affirm.

The State’s evidence established that on November 12, 1988, Officer Mike Johnson of the Peoria police department radioed that he was arresting Clarence Sanders in the Warner Homes area on suspicion of drug trafficking. Officers Marshall Dunnigan and Craig Hightower were working the area on foot at the time and heard Johnson’s broadcast. When they reached Johnson, Dunnigan noticed two black men acting in a suspicious manner near the comer of one of the buildings. Dunnigan walked toward the men. They ducked inside and began pounding on doors demanding to be let in. Their requests went unheeded, and they proceeded up the stairs to the third level, where Dunnigan observed them stop at a window in the hallway and throw out several small plastic packets. From his point of observation, Dunnigan also saw defendant dropping a larger bag. Dunnigan ran up to them and ordered them to stop. He grabbed them both, but they broke and ran as Dunnigan loosened his grip on one to retrieve his radio to call for back-up.

Dunnigan went back downstairs and picked up 15 small packets and a larger baggie containing more of the packets that he found on the ground below the window from which defendant and his partner had thrown them. With help from back-up officers, defendant and co-defendant Michael Jones were apprehended and taken to the police station for booking. Defendant volunteered that he lived in Chicago and had just driven from Oakland, California, to Peoria. The material in the small packets field-tested positive for cocaine and the two defendants were charged as aforesaid.

Defendant was taken to the Peoria County jail, where Officer Leanne Kruse inventoried defendant’s property before placing him in a cell. Defendant had six cents in his pocket and $1,000 in his underwear. The money was counted, placed in an envelope and transported back to the city police station for safekeeping in a property locker, but all or part of it had disappeared by the time defendant was tried in November 1989.

At trial, in addition to the testimony of the officers, the State introduced forensic testimony to establish that of the 50 small packets found in the larger bag, 49 tested positive for cocaine. The cocaine in those 49 packets weighed 14.7 grams. The material in each of the 15 small packets tested positive for cocaine and weighed 4.8 grams. Expert testimony further established that the small packets, each containing approximately one-quarter gram of cocaine, are called “quarter bags” and sell on the street for about $25 apiece. The witness testified that they are usually purchased by users one bag at a time. After the State’s case in chief, the defense rested without presenting any evidence.

The trial court ruled that the State had failed to prove defendant’s actual possession of or accountability for the 15 small packets. According to the court, defendant’s possession had been established only with respect to the larger bag. Therefore, since the material in the larger bag weighed 14.7 grams, defendant could not be convicted of the Class X offense as charged. The court found defendant guilty, as aforesaid, of the lesser-included Class 1 felony offense based on a quantity of cocaine weighing less than 15 grams.

We first address defendant’s argument that the State’s evidence failed to prove his knowing possession of the bag containing the 50 small packets of cocaine. Defendant suggests that he may have been merely helping Michael Jones dispose of material over which defendant had never previously exercised dominion or control.

As the State correctly responds, defendant’s theory of innocence need not have been accepted by the trial court, and on review, it is not our job to second-guess the trier of fact, but to determine whether any reasonable trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Based on the appropriate standard, we do not hesitate to affirm the trial court’s conclusion that the element of possession with respect to the bag containing 14.7 grams of cocaine was proved. Officer Dunnigan testified unequivocally that he saw defendant throw the larger bag out of the window after he and codefendant Michael Jones tossed out several smaller packets. The circumstances leading up to their attempts to discard the drugs — i.e., running away from the approaching officer and trying to gain entry into apartments in an apparently random manner — evinced defendant’s knowledge of wrongdoing. A rational trier of fact could well infer from these circumstances that defendant had knowledgeable possession of the larger bag of drugs, as well as the actual possession witnessed by Officer Dunnigan, prior to tossing the bag out the window. See People v. Griffin (1974), 18 Ill. App. 3d 873, 310 N.E.2d 746 (conviction for possession of heroin in cigarette package discarded by defendant sustained upon challenge to knowledgeable possession); People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553 (defendant’s conviction for possession of package of marijuana discarded by defendant through bedroom window sustained on defendant’s challenge based on conflicts in testimony as to defendant’s residence).

Defendant next argues that, since there was no evidence that he had made any deliveries of cocaine, the State’s proof of intent to deliver is insufficient. The law of Illinois supports the State’s position to the contrary. A reasonable inference of intent to deliver arises from possession of a quantity of drugs greater than that which might be used for personal consumption. (People v. Romero (1989), 189 Ill. App. 3d 749, 546 N.E.2d 7, 11, citing People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428.) The inference may be enhanced by factors such as how the drugs are packaged and defendant’s possession of large amounts of cash.

In this case, expert testimony established that the larger bag contained 50 individual portions of cocaine and that a user generally purchased them singly for $25 apiece. According to the expert witness, the cocaine in this case was packaged for street sale rather than for direct consumption. Defendant was arrested in an area of Peoria where street sales were common. The inference of intent to deliver arising in this case is further enhanced by defendant’s hidden cache of $1,000 in currency. And, defendant’s theory that he may have been a user only is further eroded by the fact that it is unlikely that a Chicago resident would travel to Oakland, California, or Peoria to obtain drugs for his own use. We find under the circumstances that the evidence of defendant’s intent to deliver was sufficient to sustain the court’s finding of guilt beyond a reasonable doubt.

Next, we reject defendant’s argument that the court erred in denying defendant’s motion to quash his arrest. Defendant argues that Officer Dunnigan conducted a stop without specific and articulable facts sufficient to warrant an investigative intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In fact, Officer Dunnigan did nothing to restrain defendant’s liberty until after he had probable cause to arrest. Dunnigan merely walked in the direction of defendant and continued to follow him inside the building. There is no evidence that Dunnigan even spoke to defendant or his companion or indicated that he wanted to speak to them until Dunnigan saw them throwing the cocaine out the window. At that point, Dunnigan had probable cause to arrest and did so. Accordingly, we hold that the trial court did not err in denying defendant’s motion to quash.

Lastly, we find that defendant failed to establish his right to a discharge based on a speedy trial violation. Pursuant to statute, a defendant in custody is entitled to be tried within 120 days or discharged unless delay beyond the prescribed period is occasioned by the defendant. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) In this case defendant was arrested and placed in custody on November 12, 1988. He posted bond and was released on November 15, but failed to appear in court for arraignment and was rearrested on June 3, 1989. Defendant remained in custody until the date he was to be tried on November 13,1989. Thus, he was in custody a total of 166 days.

Defendant agrees that the 27-day delay between August 2 and August 29 was chargeable to him because of defendant’s request for a fitness examination. The State agrees that the three-day period before defendant posted bond and the 60-day delay between the date he was rearrested and the date defendant requested a fitness examination are both chargeable to the State. In question is the 76-day period between following the fitness examination and the date set for trial. The trial court ruled that the entire 76-day period was occasioned by defendant.

The record discloses that defendant was disruptive of court proceedings and in jeopardy of being held in contempt for his continual religious incantations and interruptions of the judge on August 29. Defense counsel asked for a trial date at that time, and the court set it for November 13 with no objection from the defense.

We find the circumstances here virtually identical to those presented in People v. Cabrera (1989), 188 Ill. App. 3d 369, 544 N.E.2d 439. In Cabrera, as here, defendant caused delay by requesting a fitness examination. When the psychiatrist’s report was filed with the court, defendant there, as here, moved for a trial date. The trial was set in the regular course of the court’s docket for a date 35 days later. The issue on appeal was whether the 35-day delay was attributable to the State or the defense. The court prefaced its analysis with a review of applicable law:

“On a motion for discharge, the defendant bears the burden of proving that he was not responsible for the delays prior to trial. (People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.) A delay is considered to have been occasioned by the defendant if his acts have caused or contributed to the delay or where he has expressly agreed to a continuance on the record. (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) When a defendant files a pretrial motion, he is responsible for the time naturally associated with processing the motion. (DeCarlis, 88 Ill. App. 3d at 637, 410 N.E.2d at 680.) The trial court’s decision as to the accountability for delay will be sustained on appeal absent a clear showing of abuse of discretion. People v. Sonntag (1984), 128 Ill. App. 3d 548, 470 N.E.2d 631.” (188 Ill. App. 3d at 371, 544 N.E.2d at 440.)

The court then noted that defendant’s motion for a psychiatric examination and uncertainty as to the timing or the outcome of the evaluation made it impossible to set a trial date prior to the filing of the psychiatrist’s report. When defense counsel asked for a date, he agreed to setting the trial in the regular course of the court’s docket and did not object to the 35-day delay. Under these circumstances, the court on review ruled that defendant had “contributed to and acquiesced in the delay in his trial. Accordingly, *** the trial court did not abuse its discretion in attributing the [35-day] period *** to the defendant and *** denying his motion to discharge.” 188 Ill. App. 3d at 371-72, 544 N.E.2d at 440.

In this case defendant argues that, notwithstanding the delay caused by defendant’s fitness evaluation, the State was responsible for bringing him to trial within the statutory period. In so arguing, defendant purports to shift the burden to the State to prove that it was not responsible for the 76-day delay. As recited above, however, it is defendant’s burden to establish his right to a discharge, and deference will be given to the trial court’s assessment as to who is chargeable with delay. In denying defendant’s motion here, the court noted that defendant’s conduct throughout the period prior to his rearrest in June 1989 had undermined the orderly proceeding of his cause. Besides defendant’s disruptions in court, defendant had jumped bail, he had discharged his attorney, and he had obstructed the psychiatrist’s efforts to evaluate him. The record does not disclose that on August 29, 1989, a trial date earlier than November 13 was available for the court or counsel. Lacking any indication to the contrary, we assume that November 13 was the earliest date available on the court’s docket. Under the circumstances, even though defendant did not directly cause a delay in his trial date after August 29, we find that the court did not abuse its discretion in finding that defendant contributed to or acquiesced in the delay after receipt of the fitness evaluation and before defendant’s trial could be set to begin. Accordingly, we hold that the trial court did not err in denying defendant’s motion for discharge.

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

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


source: Caselaw Access Project

author: JUSTICE BARRY JUSTICE McCULLOUGH,

license: Public Domain

text:
    EDWARD HINES LUMBER COMPANY, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Floyd Pinckney, Appellee and Cross-Appellant).
    First District (Industrial Commission Division)
    No. 1—89—2358WC
    Opinion filed November 26, 1990.
    Rehearing denied July 10, 1991.

      McCULLOUGH, J., concurring in part and dissenting in part.
    Sweeney & Riman, Ltd., of Chicago (Gerald O. Sweeney, of counsel), for appellant.
    John E. Cunningham, of Chicago, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The arbitrator found that a heart attack suffered by the petitioner, Floyd Pinckney, arose out of and in the course of his employment with the respondent, Edward Hines Lumber Company. The Industrial Commission (Commission) agreed with that finding, but reduced the arbitrator’s decision regarding the petitioner’s average weekly wage. Rather than calculating overtime hours at IV2 times the petitioner’s regular hourly rate, as had the arbitrator, the Commission calculated overtime hours at the regular hourly rate. The circuit court confirmed the Commission. The respondent appeals, and the petitioner cross-appeals.

The record shows that on January 4, 1988, the petitioner was working for the respondent. The petitioner’s job consisted of putting together loads of lumber for customers. While he used a forklift to lift most of the lumber, at times he would have to lift lumber by hand and break frozen boards apart by hitting them with a hammer or by lifting the 30- to 100-pound stacks and slamming them down.

On this particular day, it was between -7°F and -13°F, with a wind chill factor of -54°F, when petitioner reported for work at 6 a.m. He was working outside and complained to his supervisor about breathing the cold air, noting that he was going to bring in a scarf the next day to put over his mouth. Around 11:30 a.m., he went inside. As he warmed up, he started feeling sick at his stomach, dizzy, and sweaty. The store manager subsequently called the paramedics, who took the petitioner to the hospital. There he was diagnosed by cardiologist Vupparahalli Ramesh as having suffered an acute myocardial infarction. He subsequently underwent bypass surgery.

Dr. Ramesh found that the petitioner had 70% narrowing of the main channel on the left side of his heart. The two arteries that bifurcate from that channel had 80% narrowing. The right coronary artery was completely occluded. However, Dr. Ramesh noted that prior to the infarction the petitioner’s heart could still pump 59% of the blood it received. The doctor stated that a normal heart could pump 60% to 80% of the blood it received. He therefore opined that 59% was a reasonable function. He further stated that before the infarction the petitioner was getting an adequate blood supply, but after the infarction he had a substantial lack of blood being supplied to his heart.

Dr. Ramesh testified that the petitioner’s work had not caused his coronary artery disease. However, he opined that working in the cold weather had increased the burden on the heart while decreasing the oxygen supplied to it, precipitating the heart attack. The doctor stated that the heart attack had made the bypass surgery necessary “because otherwise *** it would not have been revealed.” He explained that the heart attack had called attention to the underlying problem.

The evidence further showed that the 55-year-old, 5-foot-91/4-inch, 215-pound petitioner had missed only a few days here and there due to colds during his 23 years of employment. He had, however, previously suffered from high blood pressure, was a diabetic, and was overweight. He had stopped smoking in 1986 after 20 years. In 1980, he had taken off 10 days for a physical examination, which had revealed no heart problems. In 1982 and 1987, he had had EKGs done. It is not clear what the 1982 test revealed, but there is no indication that any follow-up tests or treatment resulted from it. The January of 1987 test showed a slight variation from the 1982 test. The doctor recommended that he get this variation checked but did not restrict his employment activities or place him on medication.

Upon returning from a Florida vacation in December of 1987, the petitioner noticed that he had tightness and a cold in his chest and was feeling run down. On December 18, he went to his doctor, who repeated that he should get the EKG change checked. The doctor stated, however, that it would be all right to wait until after the first of the year. The petitioner continued working. On January 2, 1988, he noticed that he was feeling tired, but nothing else bothered him. Two days later he suffered the heart attack.

The petitioner’s wife testified that he had had chest pains on New Year’s Eve. He had had similar pains off and on for over a year. She noted that on New Year’s Day he had not wanted to eat.

Internist William Buckingham, who reviewed the petitioner’s medical records on the respondent’s behalf and examined the petitioner, testified that the work activities had no effect on and were not the cause of the heart attack. He opined that given the advanced nature of the petitioner’s coronary artery disease, the heart attack would have occurred regardless of the activities in which the petitioner was engaged. He further opined that the petitioner had suffered a heart attack between November 17, 1980, and August 31, 1982, and another in January of 1987. Regarding the bypass surgery, Dr. Buckingham stated that it was performed to prevent any further extension of the infarction and to increase the general circulation to the heart.

The petitioner testified that the contract between his union and the respondent provided that he had to work whatever horn’s the respondent demanded of him. The minimum number of hours was about 10 per day 6 days a week. If an employee refused to work whatever hours the respondent requested, the respondent could fire him. The contract further provided that the petitioner would be paid time and a half for all hours worked over 40 per week.

Two of the respondent’s other forklift drivers, one of whom no longer worked for the respondent when the heart attack occurred, testified that employees had to work as much as the respondent requested and that the average weekly amount was about 60 hours. The driver who still worked for the respondent when the heart attack occurred verified the nature of the work and stated that the petitioner had shown no difficulty in doing the work before his heart attack.

The respondent’s assistant treasurer testified that the required working hours were 40 per week. He noted, however, that during busy periods employees were required to work overtime.

On appeal, the respondent first argues that the Commission’s finding that the petitioner’s heart attack arose out of and in the course of his employment was against the manifest weight of the evidence.

We note that it is well established that even where an employee suffers from preexisting heart disease, a heart attack is compensable under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) if work-related stress aggravated the disease and caused the heart attack. (City of Des Plaines v. Industrial Comm’n (1983), 95 Ill. 2d 83, 447 N.E.2d 307.) The exception to this rule is where the heart disease has progressed so far that any stress, even the most ordinary exertion, would have brought on the heart attack. (Doyle v. Industrial Comm’n (1981), 86 Ill. 2d 544, 427 N.E.2d 1223.) It is the Commission’s position to determine the credibility of the witnesses and assess the weight to be given to the evidence. (Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364.) In the presence of conflicting medical opinions, the Commission’s determination is given substantial deference and will be overturned on review only if it is against the manifest weight of the evidence. Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.

The instant respondent contends that the petitioner’s heart disease had progressed so far that any stress would have caused his heart attack. Accordingly, it argues that the petitioner came within the exception to the general rule and the Commission erred in finding that his heart attack arose out of and in the course of his employment.

We note that it is undisputed that the petitioner’s work had nothing to do with his coronary artery disease. However, Dr. Ramesh testified that the hard work the petitioner was performing in extremely cold weather directly caused the heart attack. While at one point he also agreed with the respondent’s attorney’s statement that almost any exertion would have been an overexertion as far as his risking having a heart attack, the doctor noted that he agreed with some degree of hesitation. He added that it would have taken more than just shaving or a similar activity. Dr. Buckingham opined that the work and weather were coincidental, since the petitioner’s condition was so bad that any or no activity could have caused the heart attack. This conflicting testimony merely created an evidentiary conflict for the Commission, as the trier of fact, to resolve. The Commission found Dr. Ramesh’s testimony more convincing. We find that its decision was not against the manifest weight of the evidence.

The respondent next argues that the Commission erred in finding that the need for bypass surgery was causally related to the heart attack.

Section 8(a) of the Workers’ Compensation Act provides in relevant part:

“The employer shall provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.” Ill. Rev. Stat. 1987, ch. 48, par. 138.8(a).

See also Boker v. Industrial Comm’n (1986), 141 Ill. App. 3d 51, 489 N.E.2d 913.

The Commission can draw reasonable inferences from the evidence, and a reviewing court will not disregard them simply because the court might have drawn other inferences. Further, the Commission’s determination will be upheld unless it is contrary to the manifest weight of the evidence. Schoonover v. Industrial Comm’n (1981), 86 Ill. 2d 321, 427 N.E.2d 109.

In the instant case, while the petitioner had narrowing of the arteries in his heart before the infarction, his heart function was still only 1% below the normal range. Dr. Ramesh noted that this was a reasonable function and that the petitioner was getting an adequate blood supply. The doctor further testified that after the infarction, low-level stress tests showed that the petitioner had a substantial lack of blood being supplied to his heart. While Dr. Ramesh also indicated at one point that the infarction merely revealed the need for bypass surgery, the Commission could properly have found from the above-noted medical evidence that the bypass surgery was necessary to return the petitioner to his preinfarction heart function. Accordingly, we conclude that the Commission’s decision was not against the manifest weight of the evidence.

Both the respondent and the petitioner next argue that the Commission erred in basing the petitioner’s average weekly wage on a 60-hour work week calculated at his regular hourly rate. The respondent contends that under section 10 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.10) the Commission should have based the petitioner’s average weekly wage only on his income for 40 hours per week. The petitioner contends on cross-appeal that the Commission should have calculated his average weekly wage at the regular hourly rate for the first 40 hours and then at IV2 times that rate for the next 20 hours. The petitioner further argues that the Commission erred in finding that he only worked 60 hours per week.

In 1980, the current version of section 10 of the Act took effect, providing in relevant part:

“The compensation shall be computed on the basis of the ‘Average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52 ***.” Ill. Rev. Stat. 1987, ch. 48, par. 138.10.

Prior to 1980, section 10(g) had provided in relevant part:

“Earnings, for the purpose of this section, shall be based on the earnings for the number of hours commonly regarded as a day’s work for that employment, and shall exclude overtime earnings.” Ill. Rev. Stat. 1979, ch. 48, par. 138.10(g).

We note, as do both parties, that this is a matter of first impression in Illinois. While Kidd v. Industrial Comm’n (1981), 85 Ill. 2d 534, 426 N.E.2d 822, and Sroka v. Industrial Comm’n (1952), 412 Ill. 126, 105 N.E.2d 716, discussed overtime issues under pre-1980 statutes, neither defined the term “overtime.”

The respondent relies on its interpretation of Federal statutes and cases to support its proposition that “overtime” as used in section 10 of the Act is synonymous with any time over 8 hours per day or 40 hours per week. We find its contention unpersuasive. In Patton v. Industrial Comm’n (1986), 147 Ill. App. 3d 738, 739, 498 N.E.2d 539, this court set forth the basic rules of statutory construction:

“The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature. [Citation.] In determining the legislative intent, courts should consider first the statutory language. [Citation.] Where the language is clear it will be given effect without resorting to other aids for construction.”

Had the legislature intended to exclude from the average weekly wage calculation any time worked over 8 hours per day or 40 hours per week, it could easily have stated this. Instead, the legislature plainly and unambiguously took a more flexible approach, recognizing that different occupations have different regular hours of employment, and excluded only “overtime and bonus.” By “overtime” we find that the legislature meant (1) compensation for any hours beyond those the claimant regularly works each week, and (2) extra hourly pay above the claimant’s normal hourly wage.

We note that the Montana Supreme Court reached a similar conclusion when confronted with this issue in Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048. There, the statute provided that wages were “the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered.” The Montana Supreme Court held that if the work record showed that the employer hired the claimant expecting overtime work and the claimant actually worked overtime on a consistent and regular basis, then that overtime became part of the usual hours of employment. However, those extra hours would be included in the wage calculation at the regular hourly rate.

From our discussion it can be deduced that “overtime” under the Act is a subjective standard. This is important to keep in mind because, in contrast to the petitioner’s situation, many people in today’s workforce have regular workweeks of less than 40 hours. For those people, overtime under the Act is anything above their regular workweek. If, for example, a person who regularly works 25 hours per week works 35 hours one week, that extra 10 hours would not be included in the average weekly wage calculation.

Accordingly, we conclude as a matter of law that the Commission properly calculated the petitioner’s average hourly wage based on the hours he regularly worked, but at his straight-time rate. We further find, however, that as a factual matter the Commission erred in determining that the petitioner averaged only 60 hours per week. The evidence showed that in the year preceding the petitioner’s heart attack, he earned $54,633.30. During the first 21 weeks of that year, he was paid $12.87 an hour for the first 40 hours worked per week and $19.30 for any hours thereafter. During the last 31 weeks of the year, he was paid $13.27 per hour for the first 40 hours and $19.90 thereafter. The petitioner therefore actually averaged 67 hours per week. Accordingly, we find that the Commission’s determination that the petitioner regularly averaged 60 hours per week was against the manifest weight of the evidence. (Smith v. Industrial Comm’n (1988), 170 Ill. App. 3d 626, 525 N.E.2d 81.) We therefore vacate the Commission’s determination that the petitioner averaged 60 hours per week and recalculate his benefits based on 67 hours per week. This results in an average weekly wage of $878.27. The respondent shall therefore pay to the petitioner $585.51 for 26% weeks, that being the Commission’s uncontested finding regarding his period of temporary total incapacity (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(b)).

We note for clarification that our decision does not conflict with our earlier decision in Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008. There we stated that overtime wages are not considered in calculating average weekly wages. However, that case involved a seasonal construction worker for whom the regular week was customarily considered to be 40 hours, with anything beyond that being overtime.

The judgment of the circuit court of Cook County is affirmed with the exception of the court’s confirmation of the Commission’s finding that the petitioner’s average weekly wage should be based on 60 hours. That portion of the judgment is vacated, and the petitioner is awarded $585.51 for 26% weeks.

Affirmed as modified.

McNAMARA, WOODWARD, and LEWIS, JJ., concur.

JUSTICE McCULLOUGH,

concurring in part and dissenting in part:

I disagree with the majority’s finding that the average weekly wage should be based upon 67 hours per week worked by the claimant.

The Workmen’s Compensation Act of the State of Illinois does not define overtime. The Eight Hour Work Day Act (Ill. Rev. Stat. 1987, ch. 48, par. 1) does define hours of labor and overtime compensation. Specifically, section 1 provides hours of labor as follows:

“1. On and after the first day of May 1867, eight hours of labor between the rising and the setting of the sun, in all mechanical trades, arts and employments, and other cases of labor and service by the day, except farm employments, shall constitute and be a legal day’s work, where there is no special contract or agreement to the contrary.” (Ill. Rev. Stat. 1987, ch. 48, par. 1.)

In this case, as pointed out by the majority, two fellow employees of the claimant testified that employees had to work as much as the respondent requested and that the average weekly amount was about 60 hours. The respondent’s assistant treasurer testified that the required working hours were 40 per week but that during busy periods employees were required to work overtime. As stated in the claimant’s brief, the work hours amounted to at least 10 per day, 6 days per week, with the weekly total coming to at least 60 hours. There was also testimony that the union contract required the employee to work the hours that the company wanted, and in the event the employee did not do so, he was subject to dismissal. As testified to, the minimum hours were 10 to lOVa hours per day.

This testimony, along with the definition in section 1 which states that eight hours of labor shall constitute a legal day’s work “where there is no special contract or agreement to the contrary,” is a complete justification for the Commission finding that the employee’s regular workweek was 60 hours. The Commission could find that pursuant to the section cited, there was a special contract or agreement between the employer and claimant and, based upon the evidence presented, the employee was expected to work 60 hours per week.

It could be argued that even accepting the Commission’s determination that the workweek was 60 hours renders the word “overtime” as used in the Workers’ Compensation Act meaningless. To say that the employee’s workweek was 67 hours completely emasculates the Act and renders meaningless the word “overtime.” To arbitrarily use the claimant’s income for the last 52 weeks, regardless of overtime, is contrary to the provisions of section 10 of the Workers’ Compensation Act. The Commission’s determination that the workweek was 60 hours is not against the manifest weight of the evidence.

It is then necessary to determine what the average weekly wage of the claimant was, based upon the 60 hours per week of work. The Commission found that the claimant’s average weekly wage should be based upon 60 hours per week at his regular pay scale. The claimant should be paid at the rate or actual income he received for the 60 hours, which would be 40 hours of regular rate and 20 hours of time and a half. Based upon the Commission’s determination that the workweek was 60 hours and keeping in mind that section 4(a) of the Minimum Wage Law (Ill. Rev. Stat. 1987, ch. 48, par. 1004(a)) provides that the employer must pay an employee in excess of the regular hours’ work at a rate not less than V-h times the regular rate at which he is employed, the employer knew at the time he was employing the claimant for the 60-hour week that he would be required to pay 20 hours at time and a half. The result is that claimant’s average weekly wage should be 40 hours at the regular rate and 20 hours at the rate paid for the excess time. This is consistent with the provisions of the Eight Hour Work Day Act defining a legal day’s work and at the same time gives credence to the Commission’s finding that the relationship between the claimant and the employer was that he would work 60 hours per week.

Once again, the Commission’s determination that employees were required to work 60 hours per week but were not required to work in excess of that time is not against the manifest weight standard.

I do not disagree with the Commission’s findings as affirmed by the circuit court that the employee sustained accidental injuries which arose out of and during his employment and that there was a causal connection between the accident and the need for the bypass surgery.


author: JUSTICE McNAMARA

text:
    ZEPHYR, INC., et al., Appellants, v. THE INDUSTRIAL COMMISSION et al. (John J. Giannoules, Appellee).
    First District (Industrial Commission Division)
    No. 1—90—0679WC
    Opinion filed March 1, 1991.
    Modified on denial of rehearing July 26, 1991.

      Law Offices of Francis M. Discipio, of Chicago (Francis M. Discipio and Ralph W. Miller, Jr., of counsel), for appellants.
    Gaines & Gaines, of Chicago (Lewis P. Gaines, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Respondents, Zephyr, Inc., and The Travelers Insurance Company, appeal from an order of the circuit court of Cook County confirming a decision of the Industrial Commission (Commission) which ordered respondents to pay for remodeling claimant’s home. Claimant, John Giannoules, sought worker’s compensation benefits under section 8(a) of the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.8(a)) for injuries sustained on December 27, 1986, while working for Zephyr, which resulted in the 100% loss of the use of both legs. By agreement of the parties, the Commission determined that claimant was permanently totally disabled within the meaning of the Act. The arbitrator entered an award based upon that determination, which has not been appealed.

The issues before this court are whether the Commission’s decision which awarded claimant $275,491.74 for the modification and remodeling of his residence at 1715 Parkside Drive in Hoffman Estates, Illinois, was against the manifest weight of the evidence, and whether the Act may be construed to cover payment for remodeling claimant’s home.

On January 14, 1988, after a hearing, the arbitrator ordered respondents to pay claimant $299,200 for remodeling his home. The arbitrator explicitly adopted the testimony and recommendations of claimant’s architects, Leonard Wisniewski and Michael Dixon. The arbitrator found these changes “reasonable and necessary” for claimant’s physical, mental and occupational rehabilitation under section 8(a). The arbitrator rejected the testimony of Steven Lome, Travelers’ expert, who estimated the cost of remodeling at $85,000.

Upon review, the Commission reopened the proofs, requesting specific additional evidence. Claimant submitted various itemized estimates for his modification plan. Respondents did not submit any further evidence. The Commission found that certain items in claimant’s proposed plan were not reasonable and necessary, particularly the elevator, skylight, security system, lighting equipment, and waterbed. The Commission accordingly reduced the award to $275,491.74. In its order, the Commission explicitly found Travelers’ modification plan “inadequate” and characterized it as “consisting mainly of changes to Petitioner’s kitchen.”

On appeal, respondents argue that the Commission’s decision ordering respondents to pay $275,491 to remodel claimant’s home is against the manifest weight of the evidence for two reasons: (1) claimant’s architect did not rely upon a medical opinion in developing the proposal; and (2) claimant’s proposal was based upon a rough estimate of costs and was, thus, too speculative and uncertain upon which to base a dollar award against respondents.

Claimant testified that while working for Zephyr on December 27, 1986, he sustained a bullet wound which severed his spinal cord and completely paralyzed him from the chest to the toes. Dr. Roth, claimant’s treating physician, told him that he will be confined to a wheelchair or bed for the rest of his life. Claimant cannot control his bladder or bowel function and frequently has accidents. He follows a daily regimen for bowel and bladder control, which requires a nurse’s assistance for three to four hours daily. Claimant’s 10-year-old daughter, who has been a paraplegic since birth, is also confined to a wheelchair and has similar bowel and bladder control problems.

Claimant currently resides at 211 East Ohio Street in Chicago in a facility leased and operated for Rehabilitation Institute of Chicago (Institute) patients, where he has lived since March 12, 1987. Prior to that time, he lived in the Institute’s main building several blocks away. Dr. Roth had instructed claimant to remain at the Institute facility until his home was modified because the home lacked accessible bathroom facilities and a ramp to accommodate his wheelchair.

Dr. Roth testified before the arbitrator for respondents that claimant’s incontinence and necessity for a bladder and bowel program required two separate wheelchairs and accessible bathrooms for claimant and his daughter. Dr. Roth also stated that claimant’s physical and mental well-being required that he have full accessibility to all parts of the home and sufficient space to roll through all doorways, and emphasized that two wheelchairs needed to be accommodated in the home. Dr. Roth also recommended separate beds for claimant and his wife, and heat lamps. He later stated that the home needed at least two exits and ramps to the outside for safety and an exit and ramp to the garage. Although Dr. Roth testified that Travelers’ plan was adequate for claimant’s needs, that plan provided only one exit and one bathroom.

Leonard Wisniewski, claimant’s architect, testified at the arbitration hearing that he had designed eight homes for wheelchair-incapacitated persons and considers himself an expert in the area. He visited claimant 20 times at his home in order to understand claimant’s physical disability, the limitations of wheelchair movements in the home and the special family circumstances. Wisniewski also consulted numerous textbooks and treatises. He did not rely on the specific recommendations of any doctor. His plan proposes the following modifications and additions: add ramp to front door; add storage locations for two wheelchairs; widen main corridor to accommodate two wheelchairs; remodel bathroom to allow claimant to transfer from wheelchair to toilet; remodel bedroom to allow him to readily transfer from wheelchair to bed; remodel kitchen to allow access for two wheelchairs; add elevator to basement for safety and access to physical therapy equipment; add ramps to living room and family room; and increase garage size to accommodate elevator.

Wisniewski prepared a 22-item estimate of construction costs which totaled $323,940 and included legal fees and building permits. In developing this estimate, he relied upon cost estimates, his own experience in estimating construction costs, and conversations with suppliers and other persons experienced in this area. He testified that his “whole concern was to minimize cost and simplify the building.” Wisniewski did not retain a general contractor, but a general contractor did prepare a preliminary estimate in June 1987 of $200,000 to $225,000. When Wisniewski presented his plan to Travelers at an April 1987 meeting, it immediately viewed the plan as excessive and rejected it without further consideration.

Wisniewski reviewed Travelers’ modification proposal as prepared by Steve Lome. He found that it indicated limited modifications to the kitchen, garage, and bathroom which failed to serve claimant’s needs. Specifically, Wisienewski found that Lome’s plan failed to account for two wheelchair-bound individuals in the home who require a strict daily regime for bowel and bladder incontinence. Lome’s plan also failed to provide full access for two wheelchairs in the hallways and in all rooms and ignored the safety and accessibility needs of a disabled person. Lome’s plan, in his view, failed for “lack of safety” and “lack of room to function.” Finally, the plan violated the Hoffman Estates building code provision which designates the required space between the building and the lot line.

Michael Dixon, a licensed architect who has remodeled three buildings to accommodate wheelchaired persons, testified for claimant that his practice involves renovating existing buildings, often with considerations for handicapped accessibility. He stated that he found Wisniewski’s plan to be reasonable and necessary for claimant’s needs. In Dixon’s view, the plan requires remodeling 800 square feet and adding 1,200 square feet, at the cost of $75 to $100 per square foot. The three Illinois homes Dixon built or remodeled for wheelchair accessibility cost $600,000, $350,000 and $300,000 respectively, exclusive of the property cost.

Steven Lome was hired by Travelers to develop plans for claimant’s home. He is not an architect, but rather calls himself an “accessibility consultant.” He testified that he relied upon his “not finished drawings” to estimate the cost at approximately $85,000. These preliminary plans involved the following: remodeling, but not enlarging, the kitchen; widening doorways; enlarging and remodeling bathroom; enlarging living room; and adding a front door ramp and a lift from the garage. His plan provides overall enlargement by about 100 square feet. He viewed the bathroom as the biggest difference between his and claimant’s plans. He also stated that while claimant’s plan would significantly increase the size of the home, Lome’s plan did not propose to change either the configuration or layout, but rather worked within the existing structure. Although Lome believes claimant needs a back door in case of a fire, his plan did not include one, nor does he know whether the home has more than two exits. Lome did not talk to claimant before developing his plan, nor did he consult the village regarding its building code. He visited the home for about three hours, although the record does not indicate whether this occurred prior to the development of his plan.

I.C. Newson, Travelers’ manager of claims, testified that Travelers initially projected $80,000 to remodel claimant’s home. However, because it was unable to present a plan, it attempted to settle in December 1987 by offering claimant $60,000 to remodel or modify his home and $10,000 to cover his rent expense at the Institute.

Hortense Lefkovitz, a nurse, testified for respondents that she showed Dr. Roth Wisniewski’s and Lome’s plans. Dr. Roth reviewed each item in Wisniewski’s plan to determine what was medically necessary. Dr. Roth told Lefkovitz that Lome’s plans were “adequate.”

Respondents contend on appeal that the Commission’s award of $275,491 pursuant to section 8(a) of the Act was against the manifest weight of the evidence.

We will not disturb the Commission’s findings unless they are contrary to the manifest weight of the evidence. (Berry v. Industrial Comm’n (1984), 99 Ill. 2d 401, 459 N.E.2d 963.) Further, it is the Commission’s function to resolve conflicts in the evidence, draw inferences from witness testimony and determine witness credibility and the weight to be accorded to such testimony, and its findings will not be disturbed unless against the manifest weight of the evidence. Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033.

Respondents claim that Wisniewski’s plan was not based on medical opinion and is, thus, against the manifest weight of the evidence. We do not view the evidence in this light. Although Wisniewski admittedly did not rely on a doctor’s recommendations in formulating his remodeling plan for claimant’s home, he spent considerable time with claimant in order to understand his disabilities and his medically related needs. He familiarized himself with claimant’s home, specifically the limitations of wheelchair movements in the home. He also watched claimant and his family functioning in the home. In addition, he relied upon his own expertise and substantial experience in designing space for handicapped persons.

Respondents do not argue that Wisniewski’s reliance on a medical opinion would have insured that its elements were reasonable and necessary or would have improved his plan. Rather, they maintain that Wisniewski did not rely on and claimant did not offer any medical opinion. Even though Wisniewski did not rely on medical opinion, his plans and Dr. Roth’s testimony as to claimant’s needs are entirely consistent. While Dr. Roth described Travelers’ plan as adequate, he made specific recommendations, among which included: a bathroom for claimant and his daughter, sufficiently wide hallways, at least two exits and ramps to outside, and separate beds for claimant and his wife. Wisniewski’s plan addresses each of these suggestions. Further, on review the Commission eliminated items that it concluded were not reasonable and necessary, including an elevator, skylight, security system, lighting equipment and waterbed. Therefore, the Commission’s award as modified accounted for both Wisniewski’s technical expertise and Dr. Roth’s medical opinion.

Respondents also urge that the Commission’s award, which is based upon Wisniewski’s “rough estimate,” and does not rely upon a contractor’s bid, is, therefore, too speculative upon which to base an award. We disagree. Our review of claimant’s modification proposal reveals a precise, comprehensive plan. Wisniewski prepared a schedule of construction costs which detailed 22 items by category, including legal fees, building permits and hotel costs for the period during construction. He developed his estimate from his substantial experience in estimating costs and consulted cost estimates and suppliers.

Other evidence supports the Commission’s award based upon this estimate. Although Wisniewski did not submit a general contractor’s bid, a preliminary estimate prepared by a general contractor in June 1987 estimated $200,000 to $225,000 for the remodeling cost. Michael Dixon, an architect experienced in developing space for wheelchair-confined persons, testified that claimant’s plan was adequate and specifically projected a cost for the proposal. He estimated that the construction area involved 2,000 square feet at the cost of $75 to $100 per foot, totaling $150,000 to $200,000. Although the Commission’s award exceeds this amount, Dixon’s testimony supports Wisniewski’s estimate. Further, despite the lack of an actual contractor’s bid, the Commission reasonably could have inferred that estimates of experienced architects such as Wisniewski and Dixon were based upon past experience and substantial expertise.

Respondents also suggest that claimant’s plan is excessive, incorporating items which are not reasonable and necessary. The record reveals, however, that the Commission thoroughly reviewed the plan and that its final award reflects several modifications. Despite claimant’s estimate of $323,941, the arbitrator awarded $299,200. The Commission further reduced the amount after considering evidence submitted to it. In fact, the amount was modified to eliminate certain items that Dr. Roth deemed unnecessary. The record shows that the Commission scrutinized the plan and eliminated items it considered excessive. As such, we cannot conclude that the Commission erred in finding the proposal as modified “necessary and not excessive.”

Although we may set aside the Commission’s findings when contrary to the manifest weight of the evidence, we will not substitute our judgment for that of the Commission, whose function it is to judge witnesses’ credibility and determine the weight to be given to their testimony. (Chicago Rotoprint v. Industrial Comm’n (1987), 157 Ill. App. 3d 996, 509 N.E.2d 1330.) The Commission was presented with the modification plans and testimony of Wisniewski, Dixon and Lome. The Commission was entitled to accept the opinions of Wisniewski and Dixon, and reject those of Lome. Indeed, the record reveals that Lome’s plan created only minimal additional space to accommodate claimant’s wheelchair, lacked sufficient safety features, and failed to provide two wheelchair-accessible bathrooms. Further, Lome did not talk to claimant prior to developing his plan and was only minimally familiar with the home. The Commission had ample evidence to find Travelers’ plan inadequate, and we cannot conclude that the Commission’s award was against the manifest weight of the evidence.

We also consider respondents’ claim that section 8(a) of the Act has not been construed to cover payment for remodeling an employee’s home. Section 8(a) provides in pertinent part:

“The employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. If as a result of the injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required.” Ill. Rev. Stat. 1987, ch. 48, par. 138.8(a).

Although we recognize that this precise issue has not been addressed by an Illinois court to date, we conclude that the Commission’s award is in keeping with the statute’s purpose, to fully compensate employees for work-related injuries.

This court recently addressed whether section 8(a) allowed for compensation for home care services rendered by a nonrelative even though the statutory language does not explicitly so provide. (Burd v. Industrial Comm’n (1991), 207 Ill. App. 3d 371.) That opinion is instructive here. In Burd, claimant’s work injury rendered him a paraplegic. His treating doctor prescribed nine home modifications to allow claimant to live independently without nursing care in his home, which was valued at $6,000. These changes, however, were never made, apparently due to concern over the value of the home. According to his doctor, claimant could not exist in the home without the assistance of either a “home care service or significant other.” When assistance from home care services was terminated, claimant’s live-in fiancee began assisting claimant to enter and exit the home, bathe and do general housekeeping. At the hearing, the arbitrator found that the home care services were reasonable and necessary and ordered employer to pay. In addition, the arbitrator found that claimant’s fiancee was not entitled to payment for the approximately 3,000 hours spent in caring for claimant because she had previously occupied the same residence as claimant prior to the injury. On review, the Commission found that the evidence of the need for 24-hour care was unrebutted and that the fiancee was not obligated to provide that care, and accordingly awarded claimant $21,924 for these services. The circuit court of Peoria County found the award against the manifest weight of the evidence and remanded with instructions to affirm the arbitrator’s decision. The Commission affirmed the arbitrator’s earlier award and the circuit court confirmed the Commission. Claimant appealed.

This court first noted the lack of cases in Illinois addressing whether section 8(a) of the Act covered compensation for home care services rendered by a nonrelative. We reviewed cases from other jurisdictions, which allowed such awards but distinguished between nursing attendance and services which essentially entailed housekeeping. After discussion of these cases, we concluded that the fiancee’s services were required by claimant’s injury and were not mere household duties, that the record supported the award, and that it was permissible despite the absence of statutory language.

Here we are confronted with compensation for an item not explicitly recognized in section 8(a), nor addressed by this court to date. We conclude that despite the lack of explicit statutory language in section 8(a) referring to home modifications, a fair reading of the statute does not preclude such compensation, nor is the result contrary to the statute’s general purpose of fully compensating employees for work-related injuries.

Moreover, our review of cases from other jurisdictions indicates that courts are inclined to grant unusual relief, such as home modification, when unique circumstances exist and the claimant supports his request with competent testimony.

In Squeo v. Comfort Control Corp. (1985), 99 N.J. 588, 494 A.2d 313, although relevant statutes made no express provision, the court ordered the employer to construct a self-contained modular home at an estimated $65,000 cost for an employee rendered quadriplegic from a work-related accident. The statute required employer to furnish the injured worker “such medical, surgical and other treatment, as shall be necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member where such restoration is possible” and to supply “an artificial limb or other appliance” when it may partially or totally relieve the effects of the claimant’s permanent injury. (N.J. Stat. Ann. §34:15 — 15 (West 1988).) The evidence suggested that claimant, who had attempted suicide while in a nursing home, would benefit from such change and that this was important to his physical and psychological health. The court held:

“[U]nder certain unique circumstances, when there is sufficient and competent medical evidence to establish that the requested ‘other treatment’ or ‘appliance’ is reasonable and necessary to relieve the injured worker of the effect of his injuries, the construction of an apartment addition may be within the ambit of [the statute].” Squeo, 99 N.J. at 604, 494 A.2d at 322.

Indeed, a noted commentator has written:

“Medical benefits ordinarily include not only medical and hospital services and nursing care, which may be compensable even when supplied at home by a member of claimant’s family, but also necessary incidentals such as transportation, apparatus, supplies, and sometimes even special housing facilities.” (Emphasis added.) 2 A. Larson, Workmen’s Compensation Law §61.00 (1989).

See also R & T Construction Co. v. Judge (1990), 82 Md. App. 700, 573 A.2d 96 (term “medical treatment” allowed for home modifications and special van); Langford v. Williams Rogers, Inc. (1988), 144 A.D.2d 785, 534 N.Y.S.2d 761 (language “other attendance of treatment” allowed for reasonable modifications of claimant’s home to facilitate use of wheelchair); Derebery v. Pitt County Fire Marshall (1986), 318 N.C. 192, 347 S.E.2d 814 (term “other treatment or care” included wheelchair-accessible housing); Peace River Electric Corp. v. Chaote (Fla. App. 1982), 417 So. 2d 831 (allowed claimant’s request for rent-free use of wheelchair-accessible home); Cf. Low Splint Coal Co. v. Bolling (1982), 224 Va. 400, 297 S.E.2d 665 (terms “other necessary medical attention” and “vocational rehabilitation training services” did not include structural modifications to home).

We find persuasive these cases in which terms such as “medical treatment” or “medical services” are broadly interpreted. Further, we believe that such interpretation is consistent with the mandate to liberally interpret the Act in favor of those it is designed to protect. (See General American Life Insurance Co. v. Industrial Comm’n (1983), 97 Ill. 2d 359, 454 N.E.2d 643.) We, therefore, conclude that the Commission properly ordered home modifications within the meaning of section 8(a). We do, however, caution that only unusual cases warrant the extraordinary relief granted here.

In their petition for rehearing, respondents challenged, among other things, the manner of payment of $275,491 to claimant to remodel his home. In his response, claimant suggested setting up an escrow. The Commission’s decision, however, does not provide a method for payment of the home modifications.

We believe that a proper procedure must be established for the payment of $275,491 to claimant to remodel his home. Consequently, we remand the matter with directions to establish such a procedure, whether by escrow or any other means deemed prudent.

For the above reasons, we affirm the judgment of the circuit court of Cook County and remand the cause for further proceedings consistent with these holdings.

Judgment affirmed and cause remanded with directions.

McCullough, p.j., woodward, stouder, and lewis, jj., concur.


author: PRESIDING JUSTICE CERDA

text:
    FRANK O. BUTLER II, Plaintiff-Appellee, v. JORIE BUTLER KENT et al., Defendants-Appellants (Coopers and Lybrand, et al., Defendants).
    First District (3rd Division)
    No. 1—89—2796
    Opinion filed March 13, 1991.
    Rehearing denied July 29, 1991.

      Pope & John, Ltd., of Chicago, for appellants.
    Braun & Rivkin, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Jorie Butler Kent and Michael Butler (the Butler defendants) appeal from the trial court’s entry of judgment against them in the declaratory judgment action filed by plaintiff, Frank O. Butler II, who sought a declaration that a shareholder agreement permitted him to appoint an appraiser only after the Butler defendants decided to purchase his interest. The Butler defendants argue on appeal that the trial court erred in not finding certain agreements ambiguous and in awarding judgment, attorney fees, and costs in favor of plaintiff.

Plaintiff’s complaint alleged that he and the Butler defendants were the children of the deceased Paul Butler and were the shareholders of Village Green Investment Corporation (Village Green), which owned vacant land. On April 10, 1989, plaintiff served written notice of his exercise of a “put” as to Village Green, pursuant to paragraph 1A of the shareholder agreement dated July 28, 1986, which gave the “exercising” shareholder the right to require the other “recipient” shareholders to either purchase the interest of the exercising shareholder or to sell the corporation. Plaintiff also notified the Butler defendants on that date that he intended to bid if they elected to sell Village Green, but the Butler defendants did not inform plaintiff pursuant to paragraph 14 of the shareholder agreement whether they elected to sell Village Green or to purchase plaintiff’s interest. Rather, the Butler defendants demanded that plaintiff appoint an appraiser on or before May 10, 1989, prior to their making an election whether to purchase plaintiff’s interest. Plaintiff was unwilling to appoint an appraiser unless and until the Butler defendants elected to purchase his interest.

Defendant Coopers & Lybrand was appointed by the Butler defendants to be their appraiser. Attorneys for Village Green on behalf of the Butler defendants notified plaintiff that he had waived his right to appoint an appraiser, and they directed Coopers & Lybrand to select a second appraiser, which was defendant Lloyd-Thomas/Coats & Burchard Co. Plaintiff alleged that he would be deprived of the important contractual right to select an appraiser and that, if the Butler defendants were allowed to receive the results of the appraisal before making the election, they would obtain the benefit of a “free look” in deciding whether to sell Village Green or to purchase plaintiff’s interest. Plaintiff also alleged the serious risk of irreparable injury.

Plaintiff prayed for a judgment declaring that he was not required to appoint an appraiser until either the Butler defendants elected to purchase plaintiff’s interest in Village Green or plaintiff was in fact involved in the purchase of the corporation jointly with one of the Butler defendants as described in paragraph IE of the shareholder agreement. Plaintiff also prayed for a judgment declaring that the selection of an appraiser by the Butler defendants on his behalf and any appraisal were void, and plaintiff requested an award of attorneys fees.

The shareholder agreement was entered into between plaintiff and the Butler defendants concerning the stock of Village Green and the other corporations formed as required by the final distribution and settlement agreement entered into by plaintiff and the Butler defendants in connection with the probate of their father’s will. This latter agreement provided that the stock of each of six corporations was to be owned in equal shares by the three children, that the shares would be transferred to a voting trust, that each corporation would have three voting directors, and that the designated representatives of each shareholder would be the voting members of the board of directors of the corporations.

Paragraph seven of the settlement agreement provided that each party would have a put with respect to Village Green and the other corporations within 30 days of the approval by two of the three designated representatives of a proposal for sale or development, provided that the exercising party’s designated representative voted against the proposal. The paragraph also provided:

“Any exercise of a put shall be final and irrevocable. Upon the exercise of a put by one party, the other two parties within 35 days shall, at their election, either: (1) purchase the interest of the exercising party for one-third of the fair market value of the subject Corporation as determined by three independent appraisers with no discount for fractional ownership; or (ii) proceed forthwith to sell a 100% ownership interest in the subject Corporation. *** If the party exercising the put intends to bid in the event that the subject Corporation or all of its assets will be sold, he or she shall so notify the other two parties at the time of his or her exercising the put and the 35-day response period shall be extended to 120 days.” (Emphasis added.)

Reasonable attorney fees would be awarded to any party who prevailed in a suit “to enforce any of the provisions” of the settlement agreement. The agreement was to survive the closing of the estate and was “to serve as the touchstone to determine the intent of the parties should any dispute subsequently develop.”

The shareholder agreement stated that it, along with other documents, was “intended to effectuate the purposes and provisions of the Settlement Agreement.” Paragraph 1C of the shareholder agreement provided in part:

“Within 35 days after the exercise of a Put with respect to any Corporation, the recipient Shareholders shall inform the exercising Shareholder in writing whether they have elected to sell the Corporation or to purchase the exercising Shareholder’s interest in the Corporation. If the exercising Shareholder intends to bid in the event they elect to sell the Corporation, he or she shall so notify the recipient Shareholders in the notice of exercise and the 35-day response period shall be extended to 120 days.” (Emphasis added.)

Paragraph IE of the shareholder agreement provided in part:

“In the event that the recipient Shareholders elect to purchase the exercising Shareholder’s interest in the Corporation, the recipient Shareholders and the exercising Shareholder shall each appoint an independent appraiser within 30 days after the exercise of the Put, and the two appraisers shall jointly appoint a third independent appraiser within UO days after the exercise of the Put. ***
Each appraiser shall make his own appraisal of the Fair Market Value of the Corporation within 60 days after the exercise of the Put." (Emphasis added.)

The shareholder agreement also provided for the award of attorneys fees and costs to the prevailing party who sued “to enforce any of the provisions.”

Michael Butler filed a counterclaim for declaratory judgment and other relief against plaintiff in which he argued that the only interpretation of the shareholder agreement that did not nullify paragraph IE was that the exercising shareholder would appoint an appraiser within 30 days of the exercise of the put. Count II of the counterclaim alleged plaintiff’s breach of the shareholder agreement.

On July 25, 1989, plaintiff filed a motion in limine to preclude defendants from introducing parol evidence at the trial on the basis that there was no ambiguity in the shareholder agreement. Kent withdrew her affirmative defenses. On the same date, the trial court dismissed Coopers & Lybrand with prejudice, granted the motion in limine, entered judgment in favor of plaintiff on his complaint against the Butler defendants and Lloyd-Thomas/Coats & Burchard Co., and entered judgment against Michael Butler on his counterclaim against plaintiff.

A judgment order was entered July 28, 1989, in conformity with the trial court’s oral ruling. The order contained the trial court’s findings that: (1) the phrase “in the event” in the first sentence of paragraph IE of the shareholder agreement was a clear condition precedent requiring the recipient shareholders to first elect to buy out the interest of the exercising shareholder before the commencement of the appraisal process, including the appointment of appraisers set forth in the second paragraph of paragraph IE; (2) as a consequence, no ambiguity existed concerning whether the recipient shareholders had to first elect to buy out the interest of the exercising shareholder; (3) the Butler defendants admitted in their answers that they had not yet made their election to buy out the interest of plaintiff; and (4) as a consequence of the Butler defendants’ nonelection, the time for plaintiff to appoint his appraiser had not commenced, and any appraisal performed in response to the exercise of plaintiff’s put rights was done outside of the terms of the shareholder agreement.

In addition, the order stated that: (1) plaintiff was not required to appoint an appraiser until the Butler defendants elected to purchase his interest or until plaintiff was “in fact involved in the purchase” as described in paragraph IE; (2) any appointment of an appraiser by the Butler defendants in connection with Village Green was void; and (3) plaintiff was entitled pursuant to the shareholder agreement to the payment of his litigation expenses including his reasonable attorneys fees and costs incurred in the prosecution and defense of this cause. Plaintiff was granted 28 days to file his petition for attorneys fees and costs. The court also found that there was no reason to delay the enforcement or appeal of the order.

On August 28, 1989, defendants filed an emergency motion to disqualify plaintiff’s appraiser and an emergency motion for rehearing or clarification and modification of the judgment. Defendants later withdrew their motion to disqualify, and the motion for rehearing was denied. On October 17, 1989, the Butler defendants appealed from the judgment order and the denial of their motion for rehearing. Upon the Butler defendants’ motion, the proceedings were stayed pending appeal.

The Butler defendants argue on appeal that the trial court erred in holding that the shareholder agreement was unambiguous because the settlement agreement implicitly requires the appraisal process to begin before the recipient shareholders make their election and because the phrase “in the event” of paragraph IE of the shareholder agreement was ambiguous as to whether it made the election a condition precedent to the appointment of the appraisers.

There is ambiguity if a contract term can reasonably be understood in more than one way. (Zurich Midwest, Inc. v. St. Paul Fire & Marine Insurance Co. (1987), 159 Ill. App. 3d 961, 963, 513 N.E.2d 59.) Parol evidence to vary the meaning of contract terms is inadmissible if the terms are clear and unambiguous. Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045, 1049, 550 N.E.2d 104.

The shareholder agreement was intended to effectuate the settlement agreement. Paragraph seven of the settlement agreement unambiguously requires that the purchase of the exercising shareholder’s interest be completed within 35 days. The settlement agreement provides that the purchase price is to be based upon the value of the corporation as determined by three independent appraisers but does not provide explicitly for the timing or method of selection of the appraisers. The parties disagree over whether the shareholder agreement is ambiguous as to whether the appraisers must be selected prior to the recipient shareholders’ election. Although the settlement agreement provides that a purchase of the exercising shareholder’s interest is to be completed within 35 days, the shareholder agreement contemplates that the purchase of the exercising shareholder’s interest could be completed after the 35 days by, for example, providing for the selection of the second and third appraisers within 40 and 60 days, respectively, of the exercise of the put.

We hold that there is no ambiguity in the shareholder agreement as to whether the appraisers must be selected prior to the election of the recipient shareholders to purchase. The fact that the 40- and 60-day periods specified in the shareholder agreement conflict with the settlement agreement does not render either of the agreements ambiguous on this issue. The phrase “in the event that” of paragraph IE of the shareholder agreement unambiguously requires an appointment of the first two appraisers only after the recipient shareholders’ election to purchase the exercising shareholder’s interest. The condition precedent to the appointment of appraisers was a decision by the recipient shareholders to buy the exercising shareholder’s one-third interest. Plaintiff was not required to select an appraiser prior to the election. As the Butler defendants have not yet made their election to purchase or to sell, the issue of how many days are permitted to appoint the appraisers in the case of the recipient shareholders’ election to purchase is not reached.

The Butler defendants argue that plaintiff did not seek to enforce the agreement but only requested a declaration of his rights so that he was not entitled to an award of attorney fees and costs. An action for a declaratory judgment does not enforce the contractual obligations but only declares rights so that an award of attorney fees and costs is not proper under a contractual provision for such expenses incurred in enforcing obligations under the contract. (Arrington v. Walter E. Heller International Corp. (1975), 30 Ill. App. 3d 631, 642, 333 N.E.2d 50.) The award of attorney fees and costs to plaintiff should therefore be reversed.

The judgment of the circuit court is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

RIZZI and WHITE, JJ., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN B. ARMAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2705
    Opinion filed April 10, 1991.
    Rehearing denied July 11, 1991.

      Julius Lucius Echeles and Jeffrey Urdanger, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund and Maureen A. Hartón, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

A jury in the circuit court of Cook County found defendant, John B. Arman, guilty of narcotics racketeering. (Ill. Rev. Stat. 1983, ch. 56^2, par. 1654(a).) In connection with sentencing, the State then filed a petition for forfeiture of certain real property and bank accounts of defendant. Following a hearing, the court entered a forfeiture order. Defendant appeals from that order. We affirm.

Defendant’s underlying criminal conviction was the subject of an earlier appeal, in which our reversal of his conviction was itself reversed by the supreme court. The facts of the offense were set forth in the opinions filed in that cause. People v. Arman (1988), 171 Ill. App. 3d 232, 524 N.E.2d 1195, rev’d (1989), 131 Ill. 2d 115, 545 N.E.2d 658.

Pursuant to section 5 of the Narcotics Profit Forfeiture Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1655) (the Act), the State’s petition sought forfeiture of a parcel of real estate at 1831 North Kimball Avenue, in Chicago; the proceeds from sale of another parcel at 1846 North Spaulding Avenue, in Chicago; and three savings accounts and one checking account at the Banco Popular de Puerto Rico, in Chicago. The petition alleged that defendant had acquired an interest in or had maintained the real estate and bank accounts with profits and proceeds of narcotics racketeering.

The court denied defendant’s motion in limine, which would have required the State to limit its proof of financial activity, for purposes of forfeiture, to dates falling within the time period of the racketeering activity charged in defendant’s underlying indictment. The court also denied defendant’s motions for dismissal and for summary judgment. Sitting without a jury, the court then found that the State had proved by a preponderance of the evidence that funds gained through narcotics racketeering were used to maintain the buildings in question and that such funds also “went through and became” savings and checking accounts of defendant. Accordingly, the court entered an order forfeiting the remaining Kimball Avenue real estate as well as one savings and one checking account. The court also denied defendant’s motion for a hearing to determine how much of the property was actually acquired or maintained by narcotics racketeering.

I

Defendant’s first contention is that his constitutional right to a jury trial was denied when the court conducted the forfeiture hearing without a jury.

Defendant begins by arguing that the forfeiture proceeding was “so akin to a criminal proceeding” that it was subject to the Illinois Constitution’s guaranty of a jury trial in criminal cases. (Ill. Const. 1970, art. I, §8.) He bases this argument on the fact that the Act’s forfeiture provisions were included in a statutory section setting forth three consequences of committing the offense of narcotics racketeering. Besides forfeiture, the other two consequences were guilt of a Class I felony and liability to a fine of as much as $250,000. Ill. Rev. Stat. 1985, ch. 56xlz, pars. 1655(aX3), (b).

Defendant continues by arguing that the Act’s forfeiture provisions were subject to the Illinois Constitution’s more general guaranty of the “right of trial by jury as heretofore enjoyed” (Ill. Const. 1970, art. I, §13). Defendant says that, even though the general jury-trial right protected by section 13 has been held not to apply in statutory actions of a type that were unknown to the common law, it would be unconstitutional to apply such a “restrictive” view of the section 13 right to the present action.

We note that, since defendant’s forfeiture hearing, section 5(b) of the Act has been amended to provide for conducting forfeiture hearings at any time after filing of an information or return of an indictment, rather than only at any time following sentencing. Correspondingly, the term “sentencing court” has been replaced by the mere term “court” in section 5(aX3) of the Act. Pub. Act No. 86 — 350, eff. Jan. 1,1990 (amending Ill. Rev. Stat. 1987, ch. 56V2, par. 1655).

The parties dispute whether defendant waived his claim by agreeing at the hearing that the Act precluded a jury trial of the forfeiture matter. It is also unclear whether the Act’s language actually precluded a jury trial of the matter. However, our decision does not require us to resolve either the waiver or the statutory-interpretation issue. Our reason is that, even if we assume that defendant preserved his claim and that the Act did deny a jury trial of forfeiture proceedings, the Act did not violate the Illinois Constitution in doing so.

Forfeiture statutes such as our act represent an attempt to cope with the phenomenon of continuing, influential, and highly profitable criminal enterprises that transcend isolated acts of criminality. (See, e.g., United States v. Sandini (3d Cir. 1987), 816 F.2d 869, 871-72; Smith, The Scope of Real Property Forfeiture for Drug-Related Crimes under the Comprehensive Forfeiture Act, 137 U. Pa. L. Rev. 303, 313-17 (1988); Note, A Proposal To Reform Criminal Forfeiture Under RICO and CCE, 97 Harv. L. Rev. 1929, 1929-30 (1984); see generally 37 C.J.S. Forfeitures §§1 through 6 (1943).) In part, the legislative effort requires integrating an ancient legal concept — forfeiture — with a more modem system of constitutional law.

The Act makes forfeiture one of the penalties for committing the Class I felony of narcotics racketeering. (Ill. Rev. Stat. 1989, ch. 561-/2, par. 1655; cf Sandini, 816 F.2d at 875 (under Federal statute, forfeiture is penalty, not element of crime); Weiner, Crime Must Not Pay: RICO Criminal Forfeiture in Perspective, 1 N. Ill. U.L. Rev. 225, 232 n.30 (1981) (RICO forfeiture is in personam and punishment for crime).) Under the Act as it read in defendant’s case, forfeiture might be ordered only after conviction. The forfeiture proceeding was thus part of sentencing, not part of trial. The conviction, not the forfeiture, was what determined felonious guilt. Consequently, it was during the conviction, not the forfeiture, stage of proceedings under the Act that defendant was entitled to a jury trader the Illinois Constitution’s guaranty of that right in criminal cases (Ill. Const. 1970, art. I, §8).

As a post-conviction penalty, forfeiture under the Act no more involves a section 8 right of jury trial than does any other criminal sentence. A defendant is constitutionally entitled to have a jury determine guilt or innocence, but not to have it decide the penalty. See People v. Erickson (1987), 117 Ill. 2d 271, 289, 513 N.E.2d 367, 374; cf. McMillan v. Pennsylvania (1986), 477 U.S. 79, 93, 91 L. Ed. 2d 67, 81, 106 S. Ct. 2411, 2420 (sixth amendment does not guarantee jury trial at sentencing); Spaziano v. Florida (1984), 468 U.S. 447, 464, 82 L. Ed. 2d 340, 355, 104 S. Ct. 3154, 3164 (same); People v. Heise (1913), 257 Ill. 443, 449-50, 100 N.E. 1000, 1002 (Ill. Const. 1870, art. II, §5 (did not guarantee jury trial at sentencing); People ex rel. Bradley v. Illinois State Reformatory (1894), 148 Ill. 413, 422, 36 N.E. 76, 79 (same); People v. Koning (1958), 18 Ill. App. 2d 119, 126, 151 N.E.2d 103, 106 (same).

Defendant’s claim under section 13 of article I of the Illinois Constitution likewise fails for the simple reason that, when the 1818 Illinois Constitution was adopted, there was no common law right to have a jury decide punishment after a criminal conviction. Thus, no such right was constitutionally preserved. Illinois cases have consistently held that the section 13 jury-trial right applies only to proceedings of a type in which such trial was known to the common law. (E.g., Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 120, 355 N.E.2d 537, 541; People ex rel. Keith v. Keith (1967), 38 Ill. 2d 405, 407-08, 231 N.E.2d 387, 388-89; Ward v. Farwell (1881), 97 Ill. 593, 612, 614-15; Puglisi v. Hansford (1990), 193 Ill. App. 3d 803, 807, 550 N.E.2d 618, 620.) Criminal sentencing proceedings are not of such a type. But cf. State v. Fossett (Del. Super. 1957), 134 A.2d 272, 276 (due process and common law require jury trial in same criminal proceeding of civil forfeiture sought regarding property said to be used unlawfully); accord State v. Rossitto (Del. 1974), 331 A.2d 385, 388.

Defendant has cited no authority to the contrary. His citation of In re Fifty-three Thousand Two Hundred and Sixty-three Dollars (1987), 159 Ill. App. 3d 114, 512 N.E.2d 740, is not helpful; the right to a jury was not at issue in that case, in which a forfeiture was ordered by the trial judge alone.

Accordingly, even if the Act did forbid a jury trial in his forfeiture proceeding, defendant’s constitutional claim of right to a jury is unavailing.

II

Defendant’s second contention is that, in requiring that the forfeitability of his property be proved by a mere preponderance of the evidence rather than requiring proof beyond a reasonable doubt, the Act violates his right to due process of law. Presumably, defendant invokes State as well as Federal constitutional law in this respect. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2.

A Federal court construing a comparable Federal drug forfeiture statute (21 U.S.C. §848 (1982)) employed language that is pertinent here:

“forfeiture is punishment for the crime. Forfeiture is not an element of the continuing [criminal] enterprise offense, but simply an additional penalty for that proscribed conduct. [Citation.] The argument that forfeiture is an element which must be proved beyond a reasonable doubt confuses culpability with consequences. *** The statute, in effect, characterizes forfeiture as punishment for the crime and not part of the offense itself.” United States v. Sandini (3d Cir. 1987), 816 F.2d 869, 875.

Accord United States v. Hernandez-Escarsega (9th Cir. 1989), 886 F.2d 1560, 1576-77.

The Federal constitutional requirement of proof beyond a reasonable doubt applies only to the guilt phase of a criminal trial, not to the sentencing phase. (McMillan v. Pennsylvania (1986), 477 U.S. 79, 91-93, 91 L. Ed. 2d 67, 80-81, 106 S. Ct. 2411, 2419-20.) Defendant has not shown that the Illinois Constitution dictates a different rule. His citation of In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, is unavailing; there, the Supreme Court demanded proof beyond a reasonable doubt in the adjudicatory stage of proceedings but not in the dispositional stage. Winship, 397 U.S. at 359 n.1, 25 L. Ed. 2d at 372 n.1, 90 S. Ct. at 1070 n.1.

Accordingly, defendant’s due-process claim regarding the preponderance-of-evidence standard fails.

Ill

Defendant’s third contention is that forfeiture of his property violates constitutional prohibitions of double jeopardy (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, §2) by punishing the same conduct twice, and that it violates constitutional prohibitions of cruel and unusual punishment and disproportionate penalties (U.S. Const., amends. VIII, XIV; Ill. Const. 1970, art. I, §§10,11).

Defendant cites People ex rel. Maglori v. Siman (1918), 284 Ill. 28, 119 N.E. 940, in support of his double-jeopardy contention. In that case, the supreme court discharged a habeas corpus relator from imprisonment, on the ground that the trial court had exceeded its authority in sentencing the relator to both a fine and a jail term when the statute that he had violated called for a penalty of only a fine or a jail term and he had paid the fine. (Maglori, 284 Ill. at 32, 119 N.E. at 942.) Here, by contrast, the statute that defendant violated called for him to be subject to a fine and to be subject to forfeiture. (Ill. Rev. Stat. 1985, ch. 56V2, par. 1655(a).) Thus, Maglori is inapposite.

Defendant also cites People v. Ashford (1974), 17 Ill. App. 3d 592, 308 N.E.2d 271, but just as unsuccessfully. Ashford held that, where battery was intertwined with robbery so as to form the same conduct, a separate sentence on each charge was improper. (17 Ill. App. 3d at 597, 308 N.E.2d at 276.) Here, however, defendant was charged with but a single offense — narcotics racketeering.

The forfeiture was a component of defendant’s penalty, imposed after conviction in accordance with law. There was no retrial of defendant on the underlying criminal charge during the forfeiture proceedings; instead, forfeiture was part of a sentence based on his already determined guilt of narcotics racketeering. He was not twice put in jeopardy on the same charge. Hence, his Federal and State double-jeopardy contentions fail. This is especially true since, even if he had been subjected to both criminal prosecution and a separate civil forfeiture suit, double jeopardy apparently would not have attached. See People v. Khan (1985), 136 Ill. App. 3d 754, 760, 483 N.E.2d 1030, 1035 (double-jeopardy clause does not bar institution of both civil and criminal proceedings); 36 Am. Jur. 2d Forfeitures & Penalties §35 (1968) (prior criminal conviction does not bar later civil forfeiture proceeding); Annot., 27 A.L.R.2d 1137 (1953) (same).

As for his contentions of cruelty and disproportionality, defendant has not shown that forfeiture was disproportionate to his offense’s magnitude. Indeed, because he cites no relevant authority except the bare constitutional provisions and because he makes no separate argument regarding disproportionality or cruelty, it is apparent that his contentions of cruel and unusual punishment and of disproportionate penalty are based solely on his meritless double-jeopardy contention.

In any event, by statutory definition a forfeiture would affect only such property as was acquired or maintained from narcotics racketeering. (Ill. Rev. Stat. 1985, ch. 56V2, par. 1655(aX3).) Such a statutory formulation assured sufficient proportionality. In addition, the record reveals that the trial court considered whether particular property had been illegally acquired or maintained before deciding whether it was subject to forfeiture; not all of the property that the State sought was ultimately forfeited.

Section 8 of the Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1658) states the legislative intent that it be construed in accordance with similar provisions of title IX of the Organized Crime Control Act of 1970, as amended (18 U.S.C. §1961 et seq. (1988)). Because of its built-in proportionality, the forfeiture provision of the Federal act has been held not to violate the eighth amendment’s prohibition of cruel and unusual punishment. (United States v. Huber (2d Cir. 1979), 603 F.2d 387, 397.) We reach a similar conclusion under both Federal and State constitutions with regard to the forfeiture provision as applied to defendant under our Act.

Accordingly, the forfeiture of defendant’s property was not a cruel and unusual or a disproportionate penalty.

IV

Defendant’s fourth contention is that the trial court violated his right to due process of law by denying his motion in limine. That motion sought to restrict the State’s forfeiture evidence to financial activity that occurred within the four-month time period framed by defendant’s underlying narcotics racketeering indictment.

Except for claiming due-process rights, defendant offers no legal authority for his contention. He relies simply on the argument that, because the indictment charged racketeering between March 19, 1984, and July 19, 1984, the State’s evidence regarding acquisition or maintenance of property as a result of such racketeering should pertain to financial transactions within that period only.

Logically, in order to tell whether property maintained during a four-month period was maintained as a result of racketeering committed during that period, one may well need to know at least two things: (1) whether a defendant had legitimate income during that period from which to maintain the property without using racketeering-derived funds; and (2) whether, at the beginning of that period, the defendant had resources legitimately acquired that could be drawn upon to cover maintenance expenses during the four-month period. Obviously, for example, if a defendant had inherited a large sum of money prior to the four-month period, that sum might cover property maintenance expenses during the four months; in that event, the State might have considerably more difficulty in making a forfeiture case than if no such inheritance had been available to cover the expenses. Therefore, evidence of defendant’s assets and income for a period prior to the four months of adjudicated racketeering was relevant and material to determining the forfeiture issue.

With equal logic, in order to establish what property was maintained with racketeering-derived funds, one cannot end the inquiry on the last date of adjudicated racketeering. The unlawfully derived funds would not necessarily disappear on that date; rather, they would in all likelihood still be available for use on some later dates to acquire or maintain property. Therefore, evidence of financial activities after the four-month period was also relevant and material to determining the forfeiture issue.

After receiving evidence of defendant’s resources at the beginning of his period of racketeering, the trial court considered whether defendant’s legitimate income during that period “and a reasonable time after that” could have accounted for his concurrent expenses, including property maintenance expenses. The court answered no and entered a forfeiture order. The court properly focused on the four-month racketeering period; but, without evidence of income, resources, and expenses outside the period, it would be difficult if not impossible to reach a conclusion regarding the four-month period itself. Besides, in announcing judgment, the trial judge stated that he had not considered any evidence of income and expenses that substantially predated the four-month period.

Defendant contends — again without citing authority other than constitutional due-process provisions — that, even if the evidence to which he objects was relevant and material, its admission still violated his due-process rights. He argues that the indictment and the forfeiture petition gave him no notice regarding any period other than the four months in question. But we know of no due-process principle, and defendant has cited none, that would limit criminal evidence (as distinguished from indictment or conviction) to facts or events that took place or existed solely at the time of the crime with which a defendant is charged. Instead, as long as the evidence is otherwise admissible, it can and often will pertain to prior and subsequent matters (for example, a defendant’s prior knowledge, a distinctive pattern of previous crime, the history of the victim or of relations between victim and defendant, a defendant’s flight, the criminal effects on a victim). Introduction of such evidence during criminal trials is commonplace — and the present defendant complains not even of evidence at trial but of evidence at a sentencing stage, where proof of prior and subsequent facts (such as a defendant’s remorse or deprived background) is at least as common. Defendant makes no persuasive due-process claim by asserting that the indictment and petition gave him no notice that relevant and material evidence linked partly to dates outside his four months of racketeering might be adduced.

Accordingly, the trial court did not err in admitting evidence of defendant’s financial transactions outside the four-month indictment period, and defendant was not thereby deprived of due process of law.

V

Defendant’s fifth contention is that the trial court erred in denying his motion for summary judgment. Regardless of his motion’s merits or lack thereof, the order of denial was not an appealable order; it was interlocutory, and it merged with the judgment that the court entered against defendant after a full hearing. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 494, 505 N.E.2d 314, 320; People v. Strasbaugh (1990), 194 Ill. App. 3d 1012, 1016-17, 551 N.E.2d 1095, 1098; Lambert v. City of Lake Forest (1989), 186 Ill. App. 3d 937, 940, 542 N.E.2d 1216, 1218, appeal allowed (1989), 128 Ill. 2d 664.) Thus, we need not review the trial court’s denial of defendant’s motion.

VI

Defendant’s sixth contention is that the State failed to prove by a preponderance of the evidence that his forfeited property interests were acquired or maintained as a result of narcotics racketeering.

The trial court found from the evidence that defendant had not been lawfully employed since August 1982, yet had made cash deposits into bank accounts of more than $102,000 from October 1982 to September 1984 (of which more than $46,000 was deposited since March 1984). After giving defendant the benefit of several computational and evidentiary doubts, and before deducting numerous probable maintenance expenses, the trial court found that the residential properties could have yielded a maximum net income of slightly more than $5,000 from January to September 1984. Yet, into one bank account alone, defendant had made cash deposits of more than $23,000 and deposits by check of about $3,000 during that period. He had withdrawn from that account more than $14,000 (some of it being applied to property maintenance expenses) in the same period. Another account saw cash deposits of more than $9,000 and deposits by check of more than $3,000 during the same period, as well as more than $8,500 in cash withdrawals.

In short, the trial court balanced a maximum of $5,000 in legitimate income against $53,000 of deposits in defendant’s Chicago bank accounts alone from January to September 1984, concluding that defendant could scarcely have maintained himself and his family on the $5,000, to say nothing of maintaining his real estate. The trial court was not bound to assume that any unlawfully earned funds were applied solely to personal and not to property maintenance. In largely conclusional fashion, defendant argues that the evidence demonstrates that he acquired and maintained the residential properties from legitimate funds. Yet he makes no argument that he and his dependents supported themselves in the meantime wholly from illegitimate funds. Even if he did so argue, he would not necessarily show that the paltry documentable property income was enough to cover the property expenses. Furthermore, the trial court found numerous reasons to doubt the accuracy of the figures proffered by defendant as legitimate items of income.

A reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact, and the trial court’s findings of fact are entitled to deference, especially those involving determinations of credibility. (Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 180, 545 N.E.2d 684, 688.) After a careful review of the record, we conclude that the trial court’s judgment was not against the manifest weight of the evidence.

VII

Appended to defendant’s reply brief is his motion for a judgment of reversal based on this court’s reversal of his underlying conviction of narcotics racketeering. (People v. Arman (1988), 171 Ill. App. 3d 232, 524 N.E.2d 1195, rev’d (1989), 131 Ill. 2d 115, 545 N.E.2d 658.) Our opinion in that cause was filed while defendant’s present appeal of the forfeiture order was pending. However, because of the supreme court’s later disposition of our judgment, defendant’s motion is denied. The circuit court’s judgment is affirmed.

Affirmed.

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