text:
    ROBERT VEATH, Plaintiff-Appellant, v. SPECIALTY GRAINS, INC., Defendant-Appellee.
    Fifth District
    No. 5—88—0417
    Opinion filed October 10, 1989.
    Rehearing denied November 14, 1989.

      Terry Sharp, of Law Offices of Terry Sharp, P.C., of Mt. Vernon, for appellant.

      Thomas H. Jones, of Wolff & Jones, of Murphysboro, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This appeal was brought by the plaintiff, Robert Veath, to contest the trial court’s finding that plaintiff take nothing by his suit for breach of contract to which the plaintiff and defendant were parties.

On February 20, 1984, Robert Veath and Specialty Grains, Inc., entered into a written premium corn production contract whereby plaintiff agreed to plant no less than 200 acres of premium corn and to grow not less than 15,000 bushels of white waxy premium corn. Specialty Grains agreed to purchase all such bushels that plaintiff produced. It is plaintiff’s contention that defendant is obligated under the contract to pay plaintiff for all corn delivered and accepted onto defendant’s barge in an amount compensating plaintiff for the value of U.S. grade No. 2 quality corn. Plaintiff further contends that defendant is entitled to no recovery of loss as to the grain neither accepted nor delivered.

The contract provided that upon request by Specialty Grains, plaintiff was to deliver the shelled premium corn to the Bunge elevator at Grand Tower, Illinois, during dates and times specified by Specialty Grains. The agreement between the parties provided that “all grain delivered to SGI by Grower shall grade U.S. No.2 white corn.”

During the bench trial in this cause, plaintiff testified that in 1984 he planted approximately 200 acres of white waxy com pursuant to the terms of the premium corn production contract. Plaintiff completed harvesting the crop in January 1985. Plaintiff testified that in February 1985 Specialty Grains’ agent Robert Trewaethe visited his farm and took grain samples from each of the four bins where the harvested crop was stored. Neither Specialty Grains nor Mr. Trewaethe advised the plaintiff of the results of the February 1985 grain sampling test.

Plaintiff further testified that on May 23 or 24, Robert Trewaethe of Specialty Grains once again visited the farm to gather grain samplings from the bins and advised the plaintiff that the quality of the grain did not appear to be good. Plaintiff, however, testified that at that time Specialty Grains did not contact him to advise him that the quality of the grain was not satisfactory.

On May 29, 1985, plaintiff delivered four trailer loads of the grain to the Bunge Corporation elevator at Grand Tower, Illinois. There Robert Trewaethe conducted a grain sampling test on the loads. Plaintiff described that sampling technique to the court. He stated that Mr. Trewaethe took a 15- to 20-foot brass probe and probed into the loads of grain. The grain which was probed was then put into a container and taken to the scale house, where it was tested to determine weight and moisture content. After inspection, plaintiff testified, Robert Trewaethe told him the grain was acceptable and that plaintiff should dump it. Plaintiff dumped the four loads. He observed the grain being loaded on a barge from a belt conveyor. Plaintiff then returned home to gather the other loads for hauling to the elevator. Altogether plaintiff delivered seven loads on May 29 and eight loads on May 30. Plaintiff testified that no one contacted him on May 29 with regard to the grain he delivered. On May 30 Robert Trewaethe telephoned plaintiff and told him that five of the eight loads delivered that day were rejected because the grain had “too high of a damage.” Of those five loads, two were taken to an elevator at Con Agra, which agreed to purchase them. The other three loads were returned to plaintiff’s farm.

Marvin Campbell testified on behalf of the plaintiff. Mr. Campbell assisted plaintiff in hauling his grain to the Bunge elevator on May 29 and 30. He testified that he personally observed Mr. Trewaethe conduct the grain sampling of two loads of plaintiff’s grain which were rejected at the elevator. Mr. Campbell stated that Mr. Trewaethe told him at that time that the two loads would not be accepted because they were beyond the grade standards which they wished to put on the barge. Mr. Trewaethe did not explain what that grade standard was.

Mr. Campbell and the plaintiff both testified at trial as to their observation of the Specialty Grains agent Robert Trewaethe rejecting a farmer’s grain at the Bunge elevator on May 29. Both Campbell and the plaintiff testified that when the corn of Mr. Van Entires was tested by Robert Trewaethe, Mr. Trewaethe telephoned someone and advised the party to whom he was speaking that the corn would not grade. Mr. Trewaethe then told Van Endres to move his truck out of line and not to dump the grain.

Marvin Campbell testified that he has been co-owner of Campbell Grain Company since its inception in 1979. He stated that during his employment at Campbell Grain, he did most of the grading during the harvest periods. He estimated that he has graded thousands of samples. Mr. Campbell testified that during his years at Campbell Grain, he has never attempted to reject a load of grain after it was dumped at his facility. On cross-examination Mr. Campbell acknowledged that he has not had experience with the grading of white waxy corn.

Richard Berlin, controller for Specialty Grains, was called as an adverse witness by the plaintiff. It was Mr. Berlin who sent a letter to Mr. Veath, dated June 14, 1985, describing the calculations as to the losses incurred by Specialty Grains and how Specialty Grains calculated the final amount due plaintiff under the contract. That letter showed the total loss to Specialty Grains to be deducted from plaintiff’s final payment to be $17,115.16. Mr. Berlin testified that the 10 loads of grain which were dumped at the Bunge elevator on May 29 and 30 were not “accepted” by Specialty Grains, but were dumped to the account of Mr. Veath.

Mr. Berlin explained to the court that in preparing the settlement statement which shows what losses Specialty Grains incurred and what payment was due the plaintiff, he first reviewed the weight tickets from Grand Tower. The weight tickets establish the weight of the grain delivered to the elevator. Berlin testified that final settlement was not calculated until grade certificates or a report of grade was received from the Cairo Grain Inspection Agency. In determining the final settlement figures, Mr. Berlin testified that he also waited to see whether the grain loaded on the barge at Grand Tower was accepted by Specialty Grains’ customer and what price Specialty Grains would receive for that grain.

Mr. Berlin outlined at trial how he calculated the amount owed to Veath under the terms of the contract. The settlement statement, attached to his letter of June 14, is comprised of three parts. Mr. Berlin explained that part 1 represents the actual saleable value of the corn accepted by Specialty Grains at Bunge and what would have been received if the corn had been of U.S. No. 2 grade. The second section of the settlement sheet refers to the two loads of grain which were sold at the Con Agra elevator. Calculations are made as to the difference between the price received for those loads compared to the value of what the loads would have been worth had they been of U.S. No. 2 grade. Section 3 of the settlement statement details the difference between what Specialty Grains would have received had Veath delivered the 14,500 bushels that were estimated would be produced instead of 11,494.76 bushels of corn actually delivered to the Bunge elevator.

We note that Robert Trewaethe was not called as a witness at trial; however, defendant did call Mr. John Trewaethe, a procurement manager for Specialty Grains, to testify. He explained that as outlined by the Federal grain standards, there are limitations for moisture, damage for material, test weight and other factors which are figured to determine grades of corn. Five percent damage is the maximum allowable limit for U.S. grade No. 2. He explained that corn grading more damage than 5% would receive a lower grade standard, such as No. 3 grade or No. 4 grade, or even sample grade, which is the lowest grade.

John Trewaethe testified that in the normal course of delivery, grain samples on each truckload of grain are obtained. Composite samples are taken at the site of delivery, and the actual grading procedure is done by a licensed State inspector. Trewaethe advised the court that the tests performed by that licensed State inspector are binding on both Specialty Grains and the grower. Exhibits admitted at trial included the grain certificates received from the Cairo Grain Inspection Agency. Those identified plaintiff’s grain samples as either U.S. grade No. 5 white corn or sample grade white corn.

After considering the evidence and arguments of counsel, the court entered judgment in favor of the defendant. The court’s written judgment included a finding that although plaintiff proved that he had planted and grown approximately 200 acres of white waxy corn and delivered 14,164.78 bushels of white waxy corn to the Bunge elevator, plaintiff failed to prove that the corn was U.S. grade No. 2 quality. The court found that defendant accepted 9,485.13 bushels onto the barge at Grand Tower. This corn later proved to be U.S. grade No. 5. Specialty Grains rejected 4,679.65 bushels of plaintiff’s white corn at Grand Tower. Of the rejected bushels, 1,954.64 bushels were sold to Con Agra, and 2,720 bushels of white corn were returned to plaintiff’s farm.

The court further held that the contract between the parties gave defendant the right to reject corn that did not meet purity and grading standards of No. 2 grade white waxy corn. The contract further provided a method of pricing all corn accepted by Specialty Grains which did not meet grading factors. The court found that the contract did not excuse the plaintiff from delivering corn which was damaged beyond the requisites of U.S. grade No. 2, and that defendant’s acceptance of the corn did not waive plaintiff’s obligation to provide U.S. grade No. 2 corn. The court further held that under the contract defendant was required to pay the price per bushel of the corn accepted under the terms of the contract and that defendant was not entitled to damages for loss of profit on the difference between the number of bushels the parties estimated would be delivered under the contract and the number of bushels actually delivered. However, defendant would be entitled to its loss of expected profit on grain actually delivered to the Bunge elevator. In summary, the court determined that plaintiff was not entitled to recovery for breach of contract.

Opinion

Plaintiff first challenges on appeal the trial court’s finding that defendant did not breach the contract. Although the parties briefly note some provisions of the Uniform Commercial Code, we note provisions of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.) which are applicable to the case at bar and to which the parties did not refer. It is plaintiff’s contention that defendant accepted the grain loaded onto the barge at the Bunge elevator as being in conformance with grade standards of U.S. No. 2 quality. Plaintiff argues that the contract did not reserve to defendant the right to revoke acceptance of the grain after it had accepted the grain as U.S. grade No. 2 quality at the Bunge elevator. We first address the issue of whether Specialty Grains accepted the grain at Grand Tower. The buyer upon improper tender may accept all the goods, reject all the goods, or accept part and reject part. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 601.) Once the goods are accepted, however, the buyer must pay for them at the contract rate unless acceptance is revoked. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 607.) Acts which constitute acceptance of goods are delineated in section 2 — 606 of the Uniform Commercial Code:

“§2 — 606. What Constitutes Acceptance of Goods. (1) Acceptance of goods occurs when the buyer
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
(b) fails to make an effective rejection (subsection (1) of Section 2 — 602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.
(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.” Ill. Rev. Stat. 1987, ch. 26, par. 2— 606.

Defendant, in its pretrial answers to interrogatories, stated in response to the question whether plaintiff’s grain was graded or tested at Grand Tower, that no official grade was performed at the site. Defendant has consistently maintained that no loads of grain were either accepted or rejected at Grand Tower. Defendant contends those loads not directed to be dumped for loading on the barge were rerouted to either the Con Agra elevator or back to plaintiff’s farm. We disagree with defendant’s contention that the grain loaded to the barge was not accepted by Specialty Grains. The grain was inspected by Robert Trewaethe at Mr. Veath’s farm twice before delivery to the barge. At the second inspection, which took place five or six days prior to delivery, Mr. Trewaethe advised Mr. Veath that the grain did not appear to be good. At no time, however, did Mr. Trewaethe suggest that Specialty Grains was rejecting the corn. In addition, in sampling and testing the grain at the point of delivery, expressly rejecting various loads of grain, instructing plaintiff that 10 of his loads of grain were acceptable and that he should dump them for conveyance to the barge, and commingling plaintiff’s grain with other grain, Specialty Grains demonstrated acceptance of the 10 loads of grain as to each of the three methods set forth in section 2 — 606 of the Uniform Commercial Code.

With regard to the three loads which were sent back to the farm, and the two loads routed to Con Agra, Specialty Grains rejected those loads in conformance with rightful rejection under section 2 — 602 of the Uniform Commercial Code. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 602.) Specialty Grains’ refusal to load the five loads onto the barge at the Bunge elevator, and Specialty Grains’ telephone conversation with the plaintiff advising him that the five loads were not acceptable, are actions consistent with rightful rejection under section 2 — 602.

Having established that the 10 loads of grain dumped for conveyance to the barge were accepted by Specialty Grains, we next consider plaintiff’s argument that the grain was accepted as grade No. 2 quality, and was not accepted with the reserved right of subsequent inspection to determine the quality and commensurate lower price to be paid to plaintiff. We find no need to address the question whether defendant had the right to revoke acceptance, since we agree with the plaintiff that assuming defendant had the right to revoke acceptance, defendant did not exercise such right in accordance with the Uniform Commercial Code. A reviewing court will not consider questions or contentions which are not essential to the determination of the case before it. Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 936, 445 N.E.2d 901, 905; Yale Development Co. v. Andermann (1976), 37 Ill. App. 3d 33, 39, 344 N.E.2d 701, 707, citing Navickas v. Lawrence Hall, Inc. (1967), 85 Ill. App. 2d 43, 49, 228 N.E.2d 234, 238.

Plaintiff contends that assuming defendant had the right to revoke acceptance of the 10 loads of grain, defendant did not revoke acceptance of the corn within a reasonable time. Plaintiff argues that defendant’s conduct was unreasonable because defendant did conduct sampling tests and rejected some of plaintiff’s grain at the point of delivery, while making no indication to plaintiff that the grain loaded onto the barge was below No. 2 grade. Plaintiff contends that it wasn’t until two weeks later that he was notified the grain was below grade.

The Uniform Commercial Code provides that an action is to be judged as reasonable depending on the nature, purpose and circumstances of such action (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 204(2)), and in each case that finding rests with the trier of fact. (Heller v. Sullivan (1978), 57 Ill. App. 3d 190, 372 N.E.2d 1036.) In conformity with this standard, section 2 — 608(2) provides in pertinent part:

“Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.” (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 608(2).)

In the instant case the Cairo Grain inspection certificates which were admitted into evidence at trial show that inspection of the samplings of grain loaded on the barge were conducted May 31, 1985. Defendant at oral argument in this cause acknowledged that these certificates are issued two to three days after the grain is dumped. Defendant’s witness testified that this period of delay is customary in the trade since the official grain inspector is not present at the site of delivery. The defendant’s witness Mr. Berlin testified that, in calculating the final settlement due plaintiff, he used the weight tickets and the Cairo grain inspection certificates. He testified that, before making the final determination as to the amount due plaintiff, he waited to see whether the grain was accepted by Specialty Grains’ customer and what price Specialty Grains would receive for that grain. We believe the testimony in this case that defendant failed to notify plaintiff of its revocation of acceptance of the grain promptly after the grain inspection certificates were received amply supported the trial court’s finding that defendant did not revoke acceptance. This conclusion is premised on the fact that the trial court could reasonably have inferred from the facts that the transaction had reached a stage beyond the time for revocation of acceptance. We see no reason to dispute the trial judge’s conclusion. We note that the court of review will not disturb the findings of the trial judge sitting without a jury if there is any evidence in the record to support those findings. (Cotter v. Parrish (1988), 166 Ill. App. 3d 836, 842, 520 N.E.2d 1172, 1176.) In a bench trial the findings of fact by the trial judge are to be afforded the same deference as those of a jury. Watkins v. Martin (1983), 115 Ill. App. 3d 417, 422, 450 N.E.2d 866, 870.

Since it accepted the grain loaded onto the barge and did not revoke acceptance within a reasonable time, defendant is not entitled to deduct $12,596.83. It is, however, entitled, according to the contract, to take a 3 cent discount per bushel. Therefore, as to the $12,596.83, defendant is entitled to keep $284.55 from the proceeds paid to plaintiff. Specialty Grains’ settlement statement showed $12,596.83 as being the loss Specialty Grains incurred on the 9,485.13 bushels accepted at Grand Tower. This amount represented the difference between the saleable value of the corn accepted by Specialty Grains and what Specialty Grains would have received had the corn been of No. 2 grade. We find that this measure of damages was improperly deducted from plaintiff’s final payment.

We note that the trial court found that as to the 9,485.13 bushels dumped at the Bunge elevator, plaintiff would have been entitled to the amount provided in the contract, but was not entitled to recover because plaintiff did not deliver grain of U.S. No. 2 grade.

The contract included a pricing agreement and grades and discount clause which provided in part: A buyer who has accepted goods and given proper notice may recover damages for breach of contract. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 714(1).) These damages are subject to contractual limitation. (J.D. Pavlak, Ltd. v. William Davies Co. (1976), 40 Ill. App. 3d 1, 3, 351 N.E.2d 243, 245.) Section 2 — 719(l)(a) of the Code states that the parties may contract to “provide for remedies in addition to or in substitution for those provided in this Article and may limit or alter the measure of damages recoverable under this Article.” (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 719(l)(a).) Section 2 — 719(l)(b) states that a remedy in the contract “is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.” Ill. Rev. Stat. 1987, ch. 26, par. 2-719(l)(b).

“DELAYED PRICING AGREEMENT: ***
The base price quoted to the Grower on such pricing date shall be the Mar. 85 corn futures quoted at the Chicago Board of Trade during a session when such option is trading. The base price may be based upon any other option only when mutually agreed upon by Grower and SGI and reconfirmed in writing.
(55 cents premium if corn goes to Chester, IL)
A premium/basis to 60 cents shall be added to/subtracted from the base price to determine the net price. All prices quoted shall be deemed as prices for grain delivered by the Grower to the delivery point as designated in paragraph 4.”
“GRADE AND DISCOUNT:
All grain delivered to SGI by Grower shall grade U.S. No.2 white corn. ***
Any quantity of corn grading below any of the aforementioned grade factors which is accepted by SGI shall be discounted on a per bushel basis using the discount scale in effect at the time of delivery.”

Our initial inquiry is whether the contractual remedy is expressly agreed to be exclusive, as contemplated in section 2— 719(l)(b). A remedy will be held to be exclusive when that is the reasonable construction of the contract despite any failure to employ the word exclusive. (J.D. Pavlak, 40 Ill. App. 3d at 3, 351 N.E.2d at 245.) In the instant case we note that the contract was prepared by Specialty Grains. The rule is well established that an instrument is to be construed most strongly against its author. (Crest Builders, Inc. v. Willow Falls Improvement Association (1979), 74 Ill. App. 3d 420, 423, 393 N.E.2d 107, 110, quoting Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 333, 75 N.E.2d 874, 879.) In drafting the contract, Specialty Grains included a provision stating that “this agreement constitutes the entire understanding between the parties.” Although the word “exclusive” was not incorporated into the agreement, to hold that the pricing, grade and discount provisions of the contract were not to be Specialty Grains’ sole remedy upon acceptance of the grain would render meaningless those provisions. We conclude that the parties intended the contractual pricing formula and grade and discount mechanism for grain accepted by Specialty Grains to be the exclusive remedy. Under the contract Specialty Grains was entitled to deduct 3 cents per bushel. Since Specialty Grains accepted 10 loads or 9,485.13 bushels, it was entitled to deduct $284.55 from the proceeds due plaintiff.

With regard to the finding of the trial court that Specialty Grains is not entitled to loss of profit on the difference of the number of bushels estimated would be delivered in the contract, and the number of bushels actually delivered, we affirm. The contract included a force majeure clause, providing in part: “If either party to this agreement is unable to perform his obligation or any obligation under this agreement, by reason of weather conditions *** then neither party shall have any liability under this agreement.” The trial court found that Robert Veath was excused from delivering the total 15,000 bushels due under the contract because of weather conditions. Because we will not disturb the findings of the trial judge sitting without a jury if there is any evidence in the record to support those findings, we affirm. Cotter v. Parrish (1988), 166 Ill. App. 3d 836, 842, 520 N.E.2d 1172, 1176.

As for the grain which was rejected by Specialty Grains and routed to Con Agra or sent back to plaintiff’s farm, defendant’s settlement statement provided that a loss of $4,518.33 was to be deducted from the proceeds due plaintiff by defendant. Plaintiff argues that defendant’s calculation of lost profits or other consequential damages as to the grain routed to Con Agra and the grain returned to the farm is an attempt by defendant to modify the otherwise clear terms of the contract.

Once again we note that a contractual remedy will be held to be exclusive when that is the reasonable construction of the contract. (J.D. Pavlak, 40 Ill. App. 3d at 3, 351 N.E.2d at 245.) The contract drafted by Specialty Grains in the case at bar provides that Specialty Grains “reserves the right to reject any corn grading ‘weavily’, ‘sour’, ‘musty’, or otherwise not grading U.S. Grade No. 2.” The contract provides that “in the event the premium corn shall be seized or condemned as adulterated food, the grower shall reimburse SGI for all loss, costs, and expenses in connection with the seizure, condemnation or contamination of the unacceptable premium corn.” Any construction that the remedy provided to Specialty Grains in the event the corn was not grading U.S. grade No. 2, or was seized or condemned, was nonexclusive, and that Specialty Grains could in addition seek its remedies under the Uniform Commercial Code as to the rejected corn, would render meaningless the contract clause that “this agreement constitutes the entire understanding between the parties.” We find that the contract did limit the measure of damages to Specialty Grains which would have otherwise been available under the Uniform Commercial Code. We find that Specialty Grains was not entitled to damages for the corn routed to Con Agra or returned to the farm, and thus, plaintiff is entitled to recovery in the amount of $4,518.33 which was withheld by Specialty Grains.

We are mindful of the trial court’s refusal to award a monetary recovery to plaintiff. The trial court reasoned in its written judgment that it could not award monetary damages to the plaintiff since the plaintiff brought its cause of action on a breach of contract theory. The court held that, under the terms of the contract, plaintiff was not excused from delivering corn that was of U.S. No. 2 grade. Since plaintiff failed to perform under the contract, plaintiff could not recover under a breach of contract theory. We find that the trial court erred.

If the trial court’s finding that plaintiff had not fulfilled his contractual duty were true, we would be forced to deny plaintiff recovery, since as stated in Archibald v. Board of Education (1959), 19 Ill. App. 2d 554, 561, 154 N.E.2d 867, 870:

“It is a fundamental principle of the law that, in order for one to recover upon a contract, he must have performed his part of the contract.”

We believe the trial court misconstrued the language of the contract. The trial court found that plaintiff was not excused from delivering U.S. grade No. 2 corn, and since plaintiff did not deliver No. 2 grade, plaintiff could not seek recovery for breach of contract. Regardless of the contract provision that plaintiff was to grow and deliver 15,000 bushels of premium corn, the contract further provided that corn which did not meet the No. 2 grading standard was subject to rejection or could be accepted by Specialty Grains at a discounted rate. We note that the trial court in its order recognized that the contract provided a means of pricing corn accepted by defendant which did not meet U.S. grade No. 2. The language allowing for delivery of corn below U.S. No. 2 grade, when coupled with defendant’s acceptance of the 9,485.13 bushels of grain, excused plaintiff from delivering No. 2 grade.

In summary, as to the 9,485.13 bushels accepted by Specialty Grains, plaintiff is entitled to $12,312.28. As to the grain rejected and either returned to the farm or routed to Con Agra, plaintiff is entitled to $4,518.33. Specialty Grains is entitled to keep $284.55 from the amount it withheld from Mr. Veath.

Finally we are asked by the plaintiff to add interest at the rate of 5% per annum from June 14, 1985, to the judgment entered in his favor. The law in Illinois as to when prejudgment interest can be awarded is stated in General Dynamics Corp. v. Zion State Bank & Trust Co. (1981), 86 Ill. 2d 135, 140, 427 N.E.2d 131, 134, quoting Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 398, 226 N.E.2d 270, 280, as follows:

“ ‘Interest is not awarded on money that may be found due, if the person withholding payment has done so in good faith, because of a genuine and reasonable dispute. *** [Citation.]
*** [I]t has been held error to allow interest on an amount due when, as here, that amount depends largely upon the construction placed on the terms of a contract, and upon questions of fact about which there is room for a difference of opinion. [Citation.]’ ”

We hold that under the circumstances plaintiff is not entitled to prejudgment interest.

The judgment is reversed and cause remanded with instructions to the court to enter a judgment in favor of plaintiff on the complaint in the amount of $16,830.61.

Reversed and remanded.

WELCH and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. HURD, Defendant-Appellant.
    Fifth District
    No. 5—88—0723
    Opinion filed November 1, 1989.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Garnati, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, James E. Hurd, was convicted of felony retail theft (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 3(a)) and unlawful possession of a hypodermic syringe or needle (Ill. Rev. Stat. 1987, ch. 38, par. 22— 50) by the circuit court of Williamson County sitting without a jury. The value of the goods alleged taken was less than $150, which ordinarily would constitute a Class A misdemeanor offense (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 10(1)); however, the criminal information alleged that defendant had previously been convicted of retail theft, which enhances the alleged offense to a Class 4 felony (Ill. Rev. Stat. 1987, ch. 38, par. 16A — 10(2)). Defendant’s prior theft conviction was a misdemeanor. Defendant was sentenced to concurrent terms of imprisonment of five years on the felony theft conviction and 364 days on the other conviction.

A Class 4 felony is ordinarily punishable by a determinate penal sentence of not less than one year and not more than three years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(7).) Under certain circumstances, an extended term of not less than three years and not more than six years may be imposed. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)(6).) On appeal, defendant contends that since his conviction for retail theft was a misdemeanor which was enhanced to a felony only because it was a repeat offense predicated upon a prior misdemeanor retail theft conviction, the court impermissibly enhanced his sentence by imposing an extended term of five years’ imprisonment. The State counters that the extended term was imposed as a result of defendant’s prior armed robbery, rape, and aggravated kidnapping convictions.

The presentence report reveals that on October 17, 1977, defendant was sentenced to concurrent terms of not less than five years and not more than seven years’ imprisonment on two counts of armed robbery, four counts of aggravated kidnapping, and two counts of rape. Defendant was paroled on April 16, 1979, and discharged by the Department of Corrections on June 16, 1981.

Section 5 — 5—3.2(b)(1) of the Unified Code of Corrections states:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).)

The offenses in the case at bar were alleged to have been committed on September 13, 1987. At the time defendant committed his prior felonies, aggravated kidnapping, rape, and armed robbery were Class 1 felonies. Ill. Rev. Stat. 1975, ch. 38, pars. 10 — 2(b), 11 — 1(c), 18— 2(b).

Defendant relies on People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558. Hobbs involved a defendant who was convicted of theft with a prior theft conviction, a Class 4 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e).) The trial court used a prior October 1978 felony theft conviction to enhance defendant’s instant offense from a misdemeanor to a felony and also used that same prior felony conviction to impose an extended-term sentence. Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1).

In holding that an extended-term sentence was not possible where the sentencing offense was a misdemeanor enhanced to a felony by the same prior conviction which allowed the extended-term sentence, the supreme court stated:

“To again use that 1978 felony conviction to trigger the court’s authority to impose an extended term pursuant to section 5— 5 — 3.2(b) is, in our judgment, incompatible with that section’s requirement that the charges must be ‘separately brought and tried and arise out of different series of acts.’ The logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself consti tuted a felony. Here, the 1979 conduct was a simple misdemeanor until the earlier conviction was added by allegation and proof, and these circumstances, in our judgment, are simply not those at which section 5 — 5—3.2(b) is aimed.” (Emphasis added.)Hobbs, 86 Ill. 2d at 246, 427 N.E.2d at 560.

It is true that in Hobbs, the same prior felony conviction was applied to first enhance a misdemeanor offense to a felony and then also to impose an extended term. (People v. Natty (1985), 134 Ill. App. 3d 865, 874, 480 N.E.2d 1373, 1377.) However, Hobbs has also been applied to invalidate extended terms imposed where, as here, a misdemeanor was enhanced to a felony by use of one prior conviction and a separate prior felony conviction was used as the predicate for imposition of an extended-term sentence for the enhanced offense.

In People v. Spearman (1982), 108 Ill. App. 3d 237, 438 N.E.2d 1320, the court considered the above language from Hobbs that a defendant, whose present misdemeanor retail theft conviction was enhanced to a felony because of a prior misdemeanor retail theft, could not be sentenced to an extended term despite other felony convictions of attempted burglary and two burglaries. (108 Ill. App. 3d at 239-40, 438 N.E.2d at 1321-22.) The. court in Spearman concluded that Hobbs dictates that if the criminal conduct at issue, exclusive of any enhancement provision, constitutes only a misdemeanor, then no extended term may be imposed. (108 Ill. App. 3d at 240, 438 N.E.2d at 1322.) This application of Hobbs was also followed in People v. Grayson (1983), 119 Ill. App. 3d 252, 456 N.E.2d 664, and People v. Natty (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373. We agree that Hobbs precludes an extended term, especially as in the case at bar, where defendant’s prior theft is also a misdemeanor without enhancement. See also People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

The State relies on People v. Roby (1988), 172 Ill. App. 3d 1060, 527 N.E.2d 623, which focuses on another portion of the Hobbs decision to affirm an extended-term sentence under circumstances similar to those in the case at bar. In Roby, defendant was convicted of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501) and the enhanced offense of driving while license revoked with a prior license revoked conviction, the original revocation having resulted from a conviction for DUI. The court sentenced Roby to 364 days’ imprisonment for the DUI offense and an extended-term sentence of five years’ imprisonment on the other offense. Roby had previously been convicted of aggravated battery and felony theft. He made the same argument on appeal as does the defendant in the case at bar. The Roby court reasoned a misdemeanor conviction can be enhanced to a felony conviction and then become the subject of an extended-term sentence when separate convictions are used for each step. The Roby court relied on the following language from the Hobbs decision:

“It is irrelevant that the 1978 misdemeanor theft conviction could also have served under section 16 — 1(e) to escalate the 1979 theft into a felony, leaving the 1978 felony conviction to be used to extend the sentence, for the jury was instructed only as to the prior felony conviction and its verdict was based thereon.” (Emphasis added.) (Hobbs, 86 Ill. 2d at 246, 427 N.E.2d at 560.)

While we recognize the reasoning of the Roby court, we decline to follow it.

Defendant contends that if the extended-term sentence were not imposed, he would now be eligible for release from the Department of Corrections. This court, therefore, exercises its authority under Supreme Court Rule 615(b) (107 Ill. 2d R. 615(b)) and modifies defendant’s sentence to three years’ imprisonment, the maximum unextended penal term.

The judgment of the circuit court is affirmed as modified.

Affirmed as modified.

WELCH, P.J., and LEWIS, J., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID N. UMFLEET, Defendant-Appellant.
    Fifth District
    No. 5-87-0170
    Opinion filed October 12, 1989.

      Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Richard Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Garry W. Bryan, of Decatur, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, David Umfleet, entered a negotiated plea of guilty on July 3, 1980, to home invasion and was sentenced to 21 years’ imprisonment. The defendant now appeals the denial of his petition for post-conviction relief by the circuit court of Madison County.

On February 5, 1979, the defendant and two other persons kidnapped Robert Herman in St. Louis County, Missouri. They took Herman’s car and wallet at gunpoint and forced him into the trunk of a car. They then drove to rural Madison County, Illinois, where the defendant and one of the other individuals forced their way into the residence of Sidney Daugherty at gunpoint.

The defendant was charged with several offenses in the circuit court of St. Louis County, Missouri. He was also charged with burglary and, in an amended information, with home invasion in Madison County, Illinois.

On December 3, 1979, the defendant entered a negotiated plea of guilty to kidnapping and armed robbery in the circuit court of St. Louis County. The defendant was sentenced on January 10, 1980, to 17 years’ imprisonment in accordance with the negotiated plea.

At the Missouri plea proceedings on December 3, the Missouri prosecutor, Gordon Ankney, stated:

“I want to put on the record I did have a conversation this morning with Mr. Steven [sic] Mudge, who is the prosecuting attorney in Madison County, who is prosecuting this defendant on the charge of home invasion or robbery in Illinois. This largely is an outgrowth of this incident. He informed me originally that the prosecutor there would ask for between 15 and 20 years concurrent. When I told him I thought the defendant would get 17 years, he indicated to me that the defendant, he would recommend in Illinois the defendant get 17 years concurrent.”

At the same proceeding, the defendant’s Missouri counsel, Frank

Anzalone, added:

“I would also state I talked to the defendant and quite obviously the defendant would never plead guilty unless I had some indication that this was worked out in Illinois. *** I can tell you that the defendant would not have pled guilty had it not been for that recommendation from Illinois.”

Anzalone asked the defendant: “You will not have plead [sic] guilty to begin with unless you knew you were going to get 17 years in Illinois run to ether [sic]?” The defendant responded in the affirmative. After admonishing the defendant that the court was not bound by whatever occurred in Illinois, the Missouri court accepted the defendant’s plea.

At the sentencing hearing on January 10, 1980, the defendant attempted to withdraw his plea. He argued that because he had not yet been sentenced in Illinois, the underlying agreement behind his plea was not fulfilled. The Missouri court rejected this argument and denied defendant’s motion to vacate and pronounced a sentence of 17 years. During the sentencing hearing the defendant’s counsel, Frank Anzalone, stated:

“I had informed [the defendant] that I had a conversation with Mr. Steven [sic] Mudge, who was the prosecuting attorney or state’s attorney in Madison County. *** That we had reached an agreement in fact that the defendant would receive, if defendant pled guilty to a 17 year recommendation here, that in fact he would receive a concurrent sentence in Illinois. It is on the record and I did inform the defendant and it was on the record that I informed the. defendant that. That, in fact, that agreement had been reached in Illinois. That he would receive a concurrent 17 years, and it was stated on the record that this promise was made to him and this promise was one of the reasons he was pleading guilty.”

On July 3, 1980, the defendant entered a negotiated plea of guilty to home invasion in the circuit court of Madison County, Illinois. During the plea proceedings, the defendant was specifically admonished that the State’s recommendation involved a 21-year term of imprisonment. Defendant and defense counsel concurred in the plea agreement and a 21-year sentence was imposed by the court.

On February 25, 1981, the defendant filed a “motion to vacate judgment and sentence.” One allegation of that motion was that there had been a prior plea agreement for a 17-year sentence which the defendant’s Illinois counsel failed to seek to have enforced. Counsel was appointed to represent the defendant and a post-conviction petition was filed on August 20, 1982. An amended petition was filed on March 16,1984.

An evidentiary hearing was held on the defendant’s petition on October 3, 1985. The defendant was not present at this hearing. Stephen Mudge testified that he did not “recall entering into any agreement with either a defense attorney or a prosecuting attorney in Missouri.” He stated that he “didn’t have any agreement with anyone other than what was consummated on the day of the plea” and that he did not “have any recollection of any agreement with Ankne [sic] or this Abalone or Ansalone [sic]” concerning a sentencing agreement for 17 years’ imprisonment. Mudge also testified that he would not have agreed to a 17-year sentence because Mr. Daugherty, one of the victims in the case, had contacted Mudge prior to the arrival of the defendant in Illinois and was “adamant” that the defendant serve additional time for his actions in Illinois. Mudge testified that Daugherty “somehow got wind that perhaps a negotiated plea was being attempted to be worked out in the case.”

Leonard Berg testified that he had represented the defendant at the guilty plea hearing in Illinois. During his discussions with the defendant concerning the guilty plea, the defendant voiced his concern about the original plea agreement for 17 years not being followed. “[I]n his mind it seemed to be a violation of whatever agreement that supposedly Mr. Ankne [sic] the Special [sic] Prosecutor in Missouri, had reached supposedly with Mr. Mudge.”

On January 22, 1987, another hearing was held at which the defendant testified that his Missouri attorney “had made an agreement with Stephen Mudge that once I plead guilty over here I would receive a seventeen-year concurrent sentence.” He also testified that Berg did not check into the agreement reached by his Missouri attorney. When asked why he did not object at the guilty plea to the 21-year sentence he testified: “I didn’t know I was supposed to say anything. I was just going by what I was told to do. I didn’t know nothing about court procedures. I didn’t know I could object to anything at that time.” The court asked the defendant: “How did you think this was going to convert from twenty-one years to seventeen years?” The defendant answered: “I didn’t know at that time. *** I was pretty scared at that time, you know.”

In its written order, the court found that the defendant subjectively believed that he had an agreement for a 17-year sentence. The court stated, however, that the “purported agreement was denied by the other counsel involved in this case” and found that the agreement was not proven. Post-conviction relief was accordingly denied.

On appeal, defendant argues that the circuit court’s finding that no agreement was reached was against the manifest weight of the evidence and he asks this court to enforce the agreement for a 17-year sentence. The defendant also argues, albeit briefly, that his attorney was ineffective in failing to investigate his claim of a plea agreement and in failing to make any attempt to enforce the agreement.

Before reaching the merits of the defendant’s claims, we briefly address the State’s arguments that the defendant has waived any allegations of error. The State points out that a voluntary guilty plea waives all errors, defects, and irregularities in the proceeding that are not jurisdictional, including constitutional error. While we have no quarrel with this statement as an abstract proposition of law, it has, of course, no bearing on the instant case. A waiver of issues results from entering a guilty plea only when the plea is voluntary. (People v. Ondrey (1976), 65 Ill. 2d 360, 357 N.E.2d 1160; People v. Brumas (1986), 142 Ill. App. 3d 178, 180, 491 N.E.2d 773, 775.) A plea of guilty made in reliance on the prosecution’s unfulfilled promise is not voluntary. (Santobello v. New York (1971), 404 U.S. 257, 262, 30 L. Ed. 2d 427, 433, 92 S. Ct. 495, 499; People v. Langston (1984), 125 Ill. App. 3d 479, 481, 466 N.E.2d 268, 269; People v. Mitchell (1986), 143 Ill. App. 3d 378, 381, 493 N.E.2d 623, 625.) The State also argues that the defendant has waived his right to enforce the plea agreement by his failure to file a motion to withdraw the guilty plea under Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)).

While it is true that Rule 604(d) establishes a condition precedent for an appeal from a defendant’s plea of guilty (People v. Wilk (1988), 124 Ill. 2d 93, 105, 529 N.E.2d 218, 222), a defendant’s failure to file a motion to withdraw his guilty plea does not foreclose the possibility of review. For such a defendant, the appropriate remedy lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.; see Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 223; People v. Culp (1984), 127 Ill. App. 3d 916, 468 N.E.2d 1328). Although the Act is not an alternative means for reviewing nonconstitutional issues, relief is available where a defendant’s constitutional rights have been violated. (See Wilk, 124 Ill. 2d at 107, 529 N.E.2d at 223.) In the instant case, the defendant claims that the unfulfilled plea agreement violated his constitutional right to due process. Furthermore, his claim of ineffective assistance of counsel implicates his rights under the sixth amendment.

The State further argues that the defendant’s claim must fail because the State’s Attorney’s duty under the purported plea agreement was limited to recommending a 17-year sentence and such a recommendation is not binding upon the sentencing court. As this court has previously stated, “[i]t is of no consequence that a recommendation, if made, would not have been binding on the court imposing sentence, for defendant might well have thought the court imposing sentence would have given some consideration to the recommendation.” (People v. Mitchell (1986), 143 Ill. App. 3d 378, 381-82, 493 N.E.2d 623, 625, citing People v. Mitchell (1970), 46 Ill. 2d 133, 134, 262 N.E.2d 915, 916.) Having determined that the defendant’s claims are cognizable under the Post-Conviction Hearing Act, we now turn to the merits.

The defendant maintains that the circuit court’s finding that no plea agreement had been reached between the defendant and the Madison County prosecutor was against the manifest weight of the evidence. The existence of a plea agreement and its terms and conditions are questions of fact to be determined by the trier of fact after assessing the credibility of the witnesses and the weight to be given their testimony, and the court’s determination should not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Navarroli (1988), 121 Ill. 2d 516, 521-22, 521 N.E.2d 891, 893.) Where manifest error is suggested by the record, however, a court of review will not hesitate to set aside the determination of the trial court. People v. Banks (1984), 121 Ill. App. 3d 279, 459 N.E.2d 992.

In the instant case, we find that the trial court’s determination that there was no plea agreement was against the manifest weight of the evidence. It is clear from the records of the defendant’s guilty plea and sentencing hearings in Missouri that the Missouri prosecutor, defense counsel, and the defendant all believed that the Madison County State’s Attorney had agreed to recommend a 17-year concurrent sentence in Illinois in exchange for the defendant’s guilty plea in Missouri. It is also clear that this agreement was a material factor in inducing the defendant to plead guilty to the Missouri charges. At the conclusion of the post-conviction hearing, however, the circuit court held that the agreement was not proved because the “purported agreement was denied by the other counsel involved in this case.” While at one point the Madison County State’s Attorney did deny that there was an agreement, he immediately qualified that denial by stating that he did not “have any recollection of any agreement.” He also testified that he did not “recall entering into any agreement.” We are not suggesting that the State’s Attorney was being evasive. Indeed, one can only expect his memory to be less than clear on matters which occurred several years before and involved just one case among hundreds. Nevertheless, his answers concerning the existence of the plea agreement were equivocal. Weighed against the statements of the other parties involved, made shortly after the time the purported agreement was reached, we are compelled to find that such a plea agreement was made. We emphasize that our finding is not based on the subjective beliefs of the parties involved, but rather on an objective evaluation of all the evidence presented. See Navarroli, 121 Ill. 2d at 521, 521 N.E.2d at 893 (terms of plea agreement are to be judged under objective standards).

After determining that a plea agreement existed, two issues remain: (1) whether the prosecutor breached the agreement; and (2) whether the plea agreement is enforceable. Based on the record, our interpretation of the plea agreement is that the Madison County prosecutor, in exchange for the defendant’s guilty plea to the Missouri charges, promised to recommend that the defendant receive a concurrent sentence of 17 years upon pleading guilty in Illinois. Because no such recommendation was made, we find that the plea agreement was breached.

Under the proper circumstances, when the State breaches a plea agreement, the defendant is entitled to relief. (See Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495; People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350; People v. Mitchell (1986), 143 Ill. App. 3d 378, 493 N.E.2d 623; People v. Graham (1986), 140 Ill. App. 3d 273, 488 N.E.2d 617; People v. Langston (1984), 125 Ill. App. 3d 479, 466 N.E.2d 268.) In Santobello, the Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” (Santobello, 404 U.S. at 262, 30 L. Ed. 2d at 433, 92 S. Ct. at 499.) However, in Mabry v. Johnson (1984), 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543, the Supreme Court refused to enforce a plea agreement when the prosecutor repudiated the agreement before the defendant entered a guilty plea. In Mabry, the prosecutor withdrew an offer of a proposed plea agreement after the defendant had accepted it and then proposed another, less favorable, agreement. The defendant accepted the terms of the second agreement and pleaded guilty. The Court stated:

“A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent’s liberty at issue here.” (Mabry, 467 U.S. at 507-08, 81 L. Ed. 2d at 442, 104 S. Ct. at 2546.)

The Court refused to enforce the first plea agreement because the defendant knew that the second agreement controlled when he pleaded guilty. Similarly, the Illinois Supreme Court has refused to enforce plea agreements where the defendant has not surrendered constitutionally protected interests in reliance on the agreement. See People v. Boyt (1985), 109 Ill. 2d 403, 488 N.E.2d 264, cert. denied (1986), 476 U.S. 1143, 90 L. Ed. 2d 699, 106 S. Ct. 2254; People v. Navarroli (1988), 121 Ill. 2d 516, 521 N.E.2d 891.

In Boyt the defendant agreed to testify against her codefendant, Johnny Banks, and in exchange the State agreed to allow her to plead guilty to reduced charges. Banks pleaded guilty, however, and therefore the defendant’s testimony was not needed. Thereafter the State refused to abide by the plea agreement, and the defendant sought specific performance. The Illinois Supreme Court found that the State’s repudiation of the agreement was of no constitutional significance because the defendant did not plead guilty to any charge in reliance on the agreement. Even if the State had derived some benefit from the defendant’s promise, stated the court, the plea agreement could not be enforced unless the defendant could show that she was deprived of her liberty in some fundamentally unfair way. Boyt, 109 Ill. 2d at 415, 488 N.E.2d at 270.

In Navarroli the defendant claimed that he acted as an informant in various drug investigations in exchange for the State’s promise to reduce the charges against him. After aiding law enforcement officials in their investigations, which resulted in at least two arrests, the State’s Attorney refused to reduce the charges against the defendant. The defendant sought to compel the State to carry out the plea agreement, and the Illinois Supreme Court held that it was not enforceable. The court, relying on Mabry and Boyt, held that the defendant was not deprived of liberty by virtue of the State’s refusal to abide by the terms of the plea agreement because he had not entered a plea of guilty in reliance on the agreement. The court distinguished its decision in People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350, wherein the defendant submitted to a polygraph examination in exchange for the prosecutor’s promise to dismiss the charges pending against him if he passed the test. The Starks court concluded that enforcement of the promise was necessary because the defendant had surrendered his fifth amendment privilege in exchange for and reliance on the plea agreement. The Navarroli court found, in contrast, that the defendant had not surrendered any constitutionally protected interest in reliance on the agreement. The court noted that the defendant’s right to a fair trial was unimpaired, and he still had the option of pleading not guilty and going to trial. Navarroli, 121 Ill. 2d at 529, 521 N.E.2d at 896.

In the instant case, as in Mabry, the defendant accepted the prosecutor’s new terms before pleading guilty in Illinois. Also, as in Navarroli, the defendant substantially performed his part of the bargain. Unlike either of those cases, however, here the defendant’s partial performance consisted of pleading guilty to different but related crimes in another jurisdiction.

We believe there is no question that the defendant surrendered constitutionally protected interests when he pleaded guilty to the Missouri charges, and we have found that he did so in reliance on the plea agreement with the Illinois prosecutor. When the prosecutor subsequently breached his promise, the defendant “pleaded guilty on a false premise, and it cannot be said that his guilty plea was knowingly and voluntarily made.” (Boyt, 109 Ill. 2d at 414, 488 N.E.2d at 269.) It is, however, the defendant’s guilty plea in Missouri which was induced by the prosecution’s promise; the defendant’s plea in Illinois occurred after the prosecution had breached its part of the agreement. It might appear then, as the State argues, that the defendant’s recourse is to seek relief in Missouri. We believe, however, that such a finding would be fundamentally unfair to the defendant.

First, the defendant has already served his sentence in Missouri and has been paroled from that State. For him to seek to withdraw his plea now would be nonsensical. Second, if the defendant did seek to withdraw his Missouri plea, he would almost certainly fail. A Missouri court is not bound by the promise of an Illinois prosecutor, and the defendant’s claim that such a promise was breached is likely to be ignored. Finally, a Missouri court obviously does not have the power to enforce an agreement between the defendant and an official of the State of Illinois. This court, on the other hand, has not only the power but the duty to enforce such agreements where the defendant has relinquished his constitutional rights in reliance on that agreement. We hold, therefore, that the defendant is entitled to specific enforcement of his agreement with the prosecutor.

Enforcement of the agreement does not, however, as the defendant assumes, require a modification of the defendant’s sentence to a 17-year term. The Madison County prosecutor only promised to recommend a 17-year concurrent sentence. He did not promise that the defendant would receive a 17-year sentence, nor could he have done so. (See People v. Goodman (1971), 2 Ill. App. 3d 584, 588-89, 277 N.E.2d 136, 139 (parties to plea agreement cannot bind court to terms of which it has no knowledge).) Sentencing is the function of the trial court, and it is free to accept or reject the terms of a plea agreement. (See Supreme Court Rule 402, 107 Ill. 2d R. 402.)

We therefore vacate the defendant’s sentence.

If the court chooses not to concur in the plea agreement between the State and the defendant, the court shall inform the defendant, pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402), that it is not bound by the agreement and the court shall then allow the defendant to withdraw his guilty plea if he desires. By vacating sentence and requiring the recommendation by the State as set forth in this paragraph, we do not preclude some other disposition of this case after the terms of the orders contained in this paragraph have been followed.

In view of the above disposition, we need not discuss the defendant’s argument concerning ineffective assistance of counsel.

Sentence vacated; reversed and remanded with directions.

GOLDENHERSH and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN SHERMAN, Defendant-Appellee.
    First District (4th Division)
    No. 1—87—3291
    Opinion filed November 2, 1989.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Pradeep Roy-Singh, Assistant State’s Attorney, of counsel), for the People.
    Sam Adam, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant, John Sherman, was charged with possession of cocaine with intent to deliver. The trial court granted the defendant’s motion to suppress evidence seized from his luggage after exposure to a narcotics detector dog, and the State has appealed. The issue on appeal is whether the police had a reasonable, articulable suspicion that the luggage contained contraband.

At a hearing on the motion to suppress, the defendant presented testimony by Chicago police officer Robert Glynn and Agent Mel Schabilion of the Drug Enforcement Agency. Glynn testified that at 9 a.m. on February 3, 1987, he went to the Amtrak station in Chicago. He had been told by Dennis Kroll of the Amtrak police department that two passengers traveling under the name of Rosenstock had paid cash for a one-way ticket from Fort Lauderdale, Florida, to Chicago, then on to Lapeer, Michigan. They had purchased a roomette and gave a call-back number which was to a hotel. Investigation revealed that no one named Rosenstock was staying at the hotel.

At the station, Glynn observed the defendant and his companion, later identified as Mr. Whitlock, exit the train together. Each was carrying a suitcase. After walking a few feet to a door, the defendant stopped and Whitlock continued to walk. When Whitlock was approximately 10 feet ahead, the defendant began to walk. Glynn and his partners then stopped Whitlock, identified themselves as police officers and asked if he would speak with them. The defendant continued to walk until he was similarly stopped. Both men consented to talk to the officers, and the group moved to a nearby waiting room.

In response to the officers’ questioning, the defendant produced a Michigan driver’s license. He was told that he was not required to answer any questions, and he chose not to do so. The defendant seemed businesslike, intelligent and “a little bit afraid.” Glynn informed the defendant that his luggage would be detained for exposure to a narcotics detector dog. Glynn gave the defendant his card and took down the defendant’s address so the luggage could be returned. Whitlock’s bag was also detained, and he and the defendant left the station.

Agent Schabilion brought the dog from his car. The dog signaled the presence of narcotics in both bags, and a search warrant was obtained. Cocaine was found in the defendant’s bag; Whitlock’s bag contained no narcotics.

The State presented the testimony of Dennis Kroll. Kroll testified that he checked computer reservations for passengers coming into Chicago from drug-source cities, including Fort Lauderdale, Florida. Kroll essentially corroborated the testimony of Glynn that the defendant and a companion were traveling under the name Rosenstock; they had purchased a one-way cash ticket; and the call-back number was to a hotel which had no one registered under the name Rosenstock.

At the conclusion of the hearing, the trial court granted the defendant’s motion to suppress, stating that “[b]ase[d] on the credibility of the witnesses, the facts and circumstances as I understand them, the motion to suppress the evidence and quash the warrant will be sustained.”

The detention of luggage for purposes of investigation must be justified by a reasonable suspicion based on specific articulable facts that the luggage contained narcotics. (United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637.) In determining whether a reasonable, articulable suspicion exists, the court must consider the totality of the circumstances. (United States v. Sokolow (1989), 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581.) A trial court’s ruling on a motion to suppress evidence will not be reversed unless manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

In the case at bar, the State contends that the following factors established a reasonable, articulable suspicion that the defendant’s luggage contained narcotics. The defendant and his companion occupied a roomette paid for in cash under the name Rosenstock. Neither man was named Rosenstock, and the call-back number they left was that of a hotel at which no one named Rosenstock was registered. They traveled from Fort Lauderdale, a “source” city for drugs, and walked separately through the Amtrak station. The State cites People v. Forrest (1988), 172 Ill. App. 3d 385, 526 N.E.2d 616, in support of its argument that these factors establish a reasonable, articulable suspicion that the defendant was carrying narcotics. In Forrest, the defendant flew into Chicago from a “source” city and on arrival at Midway airport lagged behind other passengers, continually looking over his shoulder as he traveled through the concourse and terminal. Although he consented to speak to the police officers, he was nervous and argumentative and remarked that he was frequently confronted concerning drugs, a statement similar to that made by the defendant in United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637. In the instant cause, there was no testimony that the defendant was scanning the area for surveillance or acting in a manner which would lead the officers to suspect that he was carrying narcotics. The testimony regarding his actions at the station showed only that he and his companion exited the train together, then walked separately through the terminal. At most, the factors enumerated by the State showed that the defendant desired to travel anonymously. In our estimation, these factors are insufficient to establish a reasonable, articulable suspicion that the defendant was carrying narcotics.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.