text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL PADGETT, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—1914
    Opinion filed June 30, 1993.
    Rehearing August 11, 1993.

      Michael J. Pelletier and Manuel S. Serritos, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Eileen O’Neill, and Laura Bertucci, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Defendant, Michael Padgett, was indicted for the murder of his estranged wife, Renee Padgett, on February 22, 1990, in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1) (now codified, as amended, as 720 ILCS 5/9— 1(a)(1) (West 1992))). Following a jury trial in the circuit court of Cook County, defendant was found guilty, convicted and sentenced to 28 years’ imprisonment. Pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603), defendant now appeals the judgment of conviction to this court.

We affirm the conviction and sentence.

FACTUAL BACKGROUND

One fact remains uncontroverted in this case: on February 22, 1990, defendant shot and killed Renee Padgett. Defendant asserts that this act was done in self-defense. The State submits that defendant’s actions amounted to first degree murder.

Defendant testified to the following sequence of events at trial. Defendant related that about one week prior to the incident, his wife had moved out of their house located at 10414 South Parnell Street in Chicago and moved in with her brother. However, Mrs. Padgett returned to the couple’s residence a few days later.

Defendant stated that he had dinner with his wife and that after-wards they watched television. At approximately 8 p.m., defendant noticed a change of mood in Mrs. Padgett. She informed him that she was going to the store to purchase detergent. Noting the worsening weather, defendant offered to go to the store for his wife, but she insisted otherwise. Defendant heard his wife’s car return to their house’s garage at around 11:30 p.m. Defendant testified that when Mrs. Padgett did not return to the house within five minutes, he became worried and retrieved his .357 magnum from a drawer upstairs and went to the garage. Earlier in the proceedings, defendant explained how the neighborhood in which the couple lived had under- . gone a severe change for the worse, with increased gang and drug activity, muggings, and home invasions. Once while defendant was at work, Mrs. Padgett and the couple’s children had been robbed inside their home at gunpoint.

After turning on the patio lights and walking outside, defendant stated that he peered into the garage and observed his wife sitting behind the wheel of their car with a half pint of liquor. After Mrs. Padgett had taken a few sips, defendant asked her why she was drinking. According to defendant, Mrs. Padgett, belligerent and intoxicated, responded that she would come in when she wanted to. Hearing her response, defendant decided to leave “it alone and started walking back to the house.”

Defendant further testified that as he returned to the house, he heard his wife start up the car and the garage door open. Worried about his wife driving in an inebriated state in a developing snow storm, defendant waited outside on the porch stoop in order to flag her down. Mrs. Padgett drove the car out of the garage and stopped in the alley. Defendant then walked toward the car.

Defendant stated that when he was approximately 10 feet from the car, he observed his wife pointing a .25-caliber handgun at him. Believing that Mrs. Padgett was going to kill him, defendant raised his gun and started shooting in her direction, emptying all six rounds from it. As he fired, defendant testified that he ran and ducked out of Mrs. Padgett’s apparent line of fire and shot the gun as he faced the car’s passenger side. The automobile lurched forward and struck a fence. Defendant walked over to the car and looked in; inside the car, he saw that his wife appeared injured. Defendant returned to the house and called 911. Having worked for Illinois Bell, defendant told the operator that there was a fire, knowing that paramedics would respond quicker to a fire emergency. After he made the call, defendant stayed inside the house to await the arrival of the authorities.

On the date of the incident, Officers Michael Jedkowski, Gerard Droba and Walter Muszynski of the Chicago police department responded at around 11:30 p.m. to the reported shooting. Officer Jedkowski testified that upon arriving at the alley behind the house, he and the two other officers found a woman who had been shot slumped over the steering wheel of a 1986 Buick Skylark. After more officers arrived on the scene, Officer Jedkowski, along with other officers, went up to the house. Officer Jedkowski stated that defendant answered the door and informed him that he had called the police and had shot his wife during an argument. Defendant also told the officers that the gun he used was in the kitchen, whereupon defendant led the officers into the kitchen and handed, the gun to Officer Jedkowski. Officer Jedkowski examined the gun and found that it contained six expended shells. At this point, defendant was placed under arrest and advised of his Miranda rights. Officer Jedkowski testified that he then asked defendant if he had any other guns in the house. Defendant said that he did have more guns and told the officers the location of the weapons, which were recovered by the officers.

Officer Jedkowski further testified that in a conversation he had with defendant at the police station, defendant said that he had an argument with his wife and that when she went outside to her car, defendant took out his .357-caliber handgun and went outside to speak to her. While defendant was talking to his wife, she pointed a .25-caliber pistol at him and defendant started firing his gun.

Officer Droba testified that when he found Mrs. Padgett, she was still alive in her car and that he stayed with her until the ambulance came. About seven hours later, Mrs. Padgett died at the hospital.

Detective John McMurray of the Chicago police department testified that on the evening of the shooting he transported defendant from the crime scene to the fifth district police headquarters. After Detective McMurray informed defendant of his Miranda rights, defendant explained to the detective that he and his wife had been fighting periodically for some time. On the night of the shooting, when Mrs. Padgett returned home, defendant went to the garage because his wife had been threatening to do something drastic. Detective McMurray stated that defendant told him that while he and Mrs. Padgett were arguing in the garage, she pointed a pistol at him. Upon seeing the gun drawn, defendant began firing at his wife. Defendant said that he fired the gun until it was empty, as he was trained to do so when he served in the Marine Corps in Viet Nam. Defendant then stated to Detective McMurray that after his wife’s car crashed into a fence, he reached into the car and felt for her pulse. Unable to find her pulse, defendant turned off the car, went in and called the police.

Detective Edmond Leracz of the Chicago police department testified that he examined the automobile that Mrs. Padgett was found in. Detective Leracz found both the driver and passenger windows were shattered.. There were bullet holes in both the front and rear windows. The detective also stated that he noticed a bullet hole in the area between the rear window and the side window. Additionally, there" were bullet holes on the inside of the driver’s door and just above the arm rest.

Officer Joseph Godina, a crime lab technician with the Chicago police department, testified that an inspection of the .25-caliber pistol found in Mrs. Padgett’s car failed to reveal the presence of any fingerprints.

Dr. Mary Jembelic, an assistant medical examiner with the Cook County medical examiner’s office, testified that on February 24, 1990, she performed an autopsy on Renee Padgett. Dr. Jembelic found two gunshot wounds: one to the chest and another to the back left side of the head. Upon first examining the wounds, Dr. Jembelic did not find any evidence" of close-range firing. Evidence of close-range firing would indicate that a gun was anywhere from next to the skin to about four feet away when fired at a victim. Dr. Jembelic had considered that any such evidence might have been washed away from the back of the head during the course of Mrs. Padgett’s treatment. Subsequently, Dr. Jembelic performed a microscopic examination on a skin sample taken from the area of the head wound. This examination revealed the head wound to be a contact wound, indicating that the gun was held against the skin when fired. In addition, a toxicology analysis of Mrs. Padgett’s blood indicated a blood-alcohol level of .014, indicating a very small amount of alcohol in the body.

Dr. Jembelic wrote two autopsy reports, an original version, dated May 18, 1990, and an amended version, dated June 15, 1990. The original report was written prior to microscopic examination and states that no indicia of close-range firing was found. The amended report, written after the microscopic examination, is the same as the original report, and the only difference is that the amended report discloses the fact that the head wound was a contact wound.

ISSUES PRESENTED FOR REVIEW

On appeal, defendant argues that: (1) he was denied a fair trial by the State’s disclosure of an autopsy report just prior to trial; (2) the trial court committed reversible error in denying his motion in limine, allowing the State to introduce evidence of other weapons; (3) he was denied a fair trial because of allegedly improper statements made by the prosecution in closing argument; and (4) his sentence of 28 years’ imprisonment was excessive and an abuse of discretion by the trial court.

Opinion

We first turn to defendant’s argument that he was denied a fair trial by the prosecution’s disclosure of the amended autopsy report just prior to trial. Supreme Court Rule 412, which addresses the question of when the State must disclose evidence, provides, in pertinent part, as follows:

“(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
* * *
(iv) any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons, and a statement of qualifications of the expert[.]
* * *
(d) The State shall perform its obligations under this rule as soon as practicable following the filing of a motion by defense counsel.” (134 Ill. 2d Rules 412 (a)(iv), (d).)

The rule’s purpose is to afford the accused protection against surprise, unfairness and inadequate protection. (People v. Hinton (1984), 122 Ill. App. 3d 89, 460 N.E.2d 791.) Compliance with Rule 412 is mandatory and is accomplished only if the State notified the defense of the alleged incriminating statement or evidence promptly and in so doing exercised due diligence. (People v. Steidl (1991), 142 Ill. 2d 204, 568 N.E.2d 837, cert. denied (1991), 502 U.S. 853, 116 L. Ed. 2d 125, 112 S. Ct. 161.) The only circumstance that excuses failure to disclose information is when a prosecutor is unaware of the existence of the evidence prior to trial and could not become aware of it through the exercise of due diligence. (People v. Kradenych (1980), 83 Ill. App. 3d 547, 404 N.E.2d 488.) Thus, discovery violations occur when a prosecutor suppresses evidence that goes to either the guilt or innocence of the accused, áfter there has been a request for its production. People v. Manzo (1989), 183 Ill. App. 3d 552, 539 N.E.2d 237.

In the case sub judice, there is no evidence that the State suppressed the evidence that defendant requested. It is uncontroverted that the prosecutor first spoke to Dr. Jembelic on the morning of trial and was only then given the amended autopsy report. Upon receiving the amended report, the State immediately tendered it to defense counsel. Such action is clearly within both the meaning and spirit of Rule 412’s requirement that the “State *** perform its obligations under [the] rule as soon as practicable.” (Emphasis added.) (134 Ill. 2d R. 412(d).) Accordingly, we find that the State complied with the requisites of Rule 412. We also reject defendant’s contention that he was prejudiced by the trial court’s refusal to grant a continuance. Our review of the record on appeal indicates the defense counsel never actually requested, either orally or in writing, a continuance and, thus, defendant cannot now argue that he was prejudiced by not receiving such a continuance.

Finally, assuming, arguendo, that the trial court’s actions were somehow in error, we fail to perceive how defendant was prejudiced. At oral argument of this case, defendant’s appellate counsel suggested that had defendant known of the evidence proving that the bullet wound to the back of Mrs. Padgett’s head was a contact wound, he could have testified differently or proceeded otherwise. In other words, defendant could have changed his story. We know of no rule of law that recognizes such prejudice as legitimate.

Defendant next submits that the trial court committed reversible error in denying his motion in limine, allowing the State to introduce evidence of other weapons. At trial, the trial judge permitted the State to introduce into evidence three other guns, a pellet gun and various types of ammunition found by the police at defendant’s residence; none of these items were used in the shooting at issue in this case.

We begin our examination of this issue by noting that “before evidence of any kind is admissible, it must be relevant. [Citations.] Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 487-88, 485 N.E.2d 1292; see also Fed. R. Evid. 401.) The State cites several cases for the proposition that it is proper to admit into evidence guns or other items of physical evidence- seized at a defendant’s arrest as relevant to the arrest details. (See, e.g., People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285.) However, in these cases the other items were taken from the defendants at the time of their arrests and being placed into custody. In this case, defendant had already been arrested, warned pursuant to Miranda, and given his version of the events to the police. Thus, the arrest was a fait accompli when the police located the additional weaponry. Consequently, the cases cited by the State are inapplicable to the case at bar. Furthermore, we believe the introduction of these unrelated weapons to be totally irrelevant to the issue of whether defendant intentionally killed his wife with the gun he handed over to the police. Therefore, the trial court erred in admitting into evidence these items.

Although the trial court erred in admitting these weapons into evidence, we are satisfied beyond a reasonable doubt that this evidence did not contribute to defendant’s conviction. There was more than ample evidence of defendant’s guilt. Consequently, we find that the complained-of error was harmless. People v. Rickard (1981), 99 Ill. App. 3d 914, 425 N.E.2d 1317.

Still to be considered is defendant’s position that he was denied a fair trial because of the improper comments made by the State in closing argument. In reference to allegedly improper prosecutorial remarks made in closing argument, the Illinois Supreme Court in People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970, stated:

“In reviewing the defendant’s allegations of error here, we first note that a prosecutor is allowed a great deal of latitude in making the closing argument [citations], and the trial court’s determination of the propriety of the argument will generally be followed absent a clear abuse of discretion [citation]. To constitute reversible error, the complained-of remarks must have resulted in substantial prejudice to the accused, such that absent those remarks the verdict would have been different. [Citation.] In reviewing allegations of prosecutorial misconduct, the closing arguments of both the State and the defendant must be examined in their entirety and the complained-of comments must be placed in their proper context.” Cisewski, 118 Ill. 2d at 175-76.

See also People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38, cert. denied (1988), 488 U.S. 871, 102 L. Ed. 2d 156, 109 S. Ct. 187.

The first allegedly improper remark is contained in the following exchange:

“[PROSECUTOR]: Judge Karnezis also is going to tell you, I believe, that a person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
Now, reasonable belief means a person acting as a reasonable person.
[DEFENSE COUNSEL]: Objection.
THE COURT: I will instruct the jury.
[PROSECUTOR]: I believe the Judge will instruct you as to what reasonable belief is. It is not what [defendant] believed. He does not set community standards. It is what a reasonable person believes.”

Subsequently, in rebuttal argument the State’s co-prosecutor, over defense objection, stated: “It is what the community decides is reasonable, not what is going on in this man’s head.” In response, the trial judge again stated: “I will instruct the jury.”

We would agree that the above statements of law provided by the prosecutors are less than hornbook definitions. However, we believe that the trial judge made it clear to the jury that it was he who was to instruct it on law. Furthermore, the trial court did properly instruct the jury on the law of self-defense. Thus, any error which might have occurred here was cured by such admonitions and proper instructions. People v. Lewis (1990), 198 Ill. App. 3d 976, 556 N.E.2d 697.

The second allegedly improper comment is contained in the following colloquy:

“[PROSECUTOR]: If you believe what [defendant] wants you to believe about that he is justified in shooting this woman then we better all be scared because you are going to have to —
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.
[PROSECUTOR]: Because you will have to go home and lock your doors because this is like the old west and all you have to do is say somebody pulled a gun on you to get off with this.
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained.”

We believe these comments to be inappropriate, designed only to inflame the passions of the jury and appeal to its fears. (See People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890.) Nevertheless, we find this improper comment to have been cured by the trial judge’s admonitions and instructions to the jury. Lewis, 198 Ill. App. 3d 976, 556 N.E.2d 697.

With regard to the final comments defendant cites as improper, dealing with alleged misstatements of fact, we find that such argument is waived. “Preservation of an issue on appeal mandates both the objection at trial and the inclusion of the issue in the post-trial motion.” (People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041, 611 N.E.2d 1285, citing People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) As defendant failed to make objections at trial to all but one of these comments, argument with respect to these comments is deemed waived. Regarding the one comment that was objected to at trial, such comment is not cognizable on appeal as defendant failed to specifically raise an objection to it in his post-trial motion and, therefore, it is also waived. People v. David (1986), 141 Ill. App. 3d 243, 261, 489 N.E.2d 1124; see also People v. Phillips (1989), 186 Ill. App. 3d 668, 682, 542 N.E.2d 814; People v. Pendelton (1989), 185 Ill. App. 3d 768, 777, 542 N.E.2d 386.

Finally, defendant submits that his sentence of 28 years’ imprisonment was excessive and an abuse of discretion by the trial court. Our thorough review of the record reveals that the trial judge took into careful consideration what he termed as defendant’s “exemplary life” at the time of sentencing. We believe the trial court made a thoughtful analysis of defendant’s personal background, history of continuous employment, honorable military service in Viet Nam, lack of a prior criminal record and prospect of rehabilitation. Section 5— 8 — 1 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1) provides that the offense of first degree murder is punishable by a term of imprisonment of not less than 20 years and not more than 60 years. Therefore, defendant’s sentence was well within both the statutorily approved range of possibilities and the trial court’s discretion. People v. O’Neal (1988), 125 Ill. 2d 291, 531 N.E.2d 366.

For the aforementioned reasons, we affirm the judgment of the circuit court.

Affirmed.

RIZZI and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    SANDBURG FACULTY ASSOCIATION, IEA-NEA, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees .
    First District (3rd Division)
    No. 1 — 91—3473
    Opinion filed June 30, 1993.

      Lisa B. Moss and John F. Ward, both of Carmell, Charone, Widmer, Mathews & Moss, Ltd., of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    R. Theodore Clark, Jr., Robert J. Smith, Jr., and Sally J. Scott, all of Seyforth, Shaw, Fairweather & Geraldson, of Chicago, for respondent Carl Sandburg College.
   JUSTICE GREIMAN

delivered the opinion of the court:

Petitioner Sandburg Faculty Association, IEA-NEA (IEA), pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335), appeals an order of the Illinois Educational Labor Relations Board (Board) which denied its petition for an election to enlarge an existing collective bargaining unit of approximately 50 faculty members and counselors at Carl Sandburg College (College) by adding approximately 45 nonfaculty employees to the unit.

The IEA raises these issues for review: (1) whether the proposed unit is appropriate, under the traditional community of interest standard, as set out in section 7 of the Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1991, ch. 48, par. 1707), or (2) whether the proposed unit is appropriate under the broader “wall-to-wall” unit standard.

Carl Sandburg Community College is a small public community college operated in Illinois Community College District No. 518 by the Board of Trustees of Illinois Community College District No. 518 and is subject to the rules and regulations of the Illinois Community College Board and the State Board of Higher Education. Ill. Rev. Stat. 1991, ch. 122, par. 102 — 1 et seq.

The College is a two-year institution which has its main campus and administrative offices located in Galesburg, Illinois, offering a variety of courses geared to both baccalaureate and vocational programs. The College operates an extension center in Carthage, Illinois, which offers a night school program. The College also offers instruction at Hill Correctional Center (Hill), approximately two miles from the main campus in Galesburg, housing approximately 1,000 inmates. However, the educational services at Hill are provided under a contract with the Department of Corrections (DOC) which requires seven full-time faculty employees, one full-time academic adviser, one full-time secretary and one administrator be provided.

The DOC controls the terms and conditions of the College employees working at Hill and the College has little control over their day-to-day duties and functions.

The DOC (1) requires College employees to submit to mandatory security tests, drug tests and special security training; (2) requires the College employees be subject to DOC policies, regulations and procedures designed specifically and exclusively for a prison environment; (3) determines, in large part, the wages and work schedule of the workers at Hill; and (4) can terminate the College employees at Hill simply by failing to renew funding for the program.

The College’s main campus consists of three buildings: the Fine Arts and Physical Education Building, the Butler Building, and the Main Building. A dean or director heads the College’s different departments: building and grounds, data processing, food service, financial services, instruction, business services, joint training and partnership act, admissions and records, student services, Henry Hill Correctional Center Education, financial aid, community and extension services, learning resources and vocational technical education.

In January 1991, the IEA filed its petition with the Board seeking a self-determination election to add approximately 45 nonfaculty employees and three security employees not represented by a labor organization to an existing faculty unit of approximately 50 full-time faculty and counselors.

The IEA did not seek to add to the unit the seven instructors and an academic advisor who work for the College full-time at Hill.

In March 1991, a hearing officer issued a recommended decision and order dismissing the petition, finding that the basic terms and conditions of employment of the faculty and counselors are distinct from those of the nonfaculty and security employees sought to be joined.

In September 1991, the Board affirmed the hearing officer’s findings, with one Board member dissenting. That member stated that the realities of a small community college environment lead to the conclusion that the proposed unit has an identifiable community of interest under even the traditional standard and thus the unit could be enlarged as proposed.

We agree with the dissenting Board member and find that the Board inappropriately and erroneously placed undue emphasis on two factors and that the proposed unit is appropriate under the traditional community of interests analysis.

However, we also find that the unit is appropriate under a wall-to-wall standard that applies where the proposed unit consists of all educational employees of a single educational employer, including the nonprofessional with the professional, who are under the exclusive control of the employer.

In determining the appropriateness of a collective bargaining unit, the Illinois Educational Labor Relations Act (the Act) provides in section 7(a):

“[T]he Board shall decide in each case, in order to ensure employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purpose of collective bargaining, based upon but not limited to such factors as historical pattern of recognition, community of interest, including employee skills and functions, degree of functional integration, interchangeability and contact among employees, common supervision, wages, hours and other working conditions of the employees involved, and the desires of the employees.” Ill. Rev. Stat. 1991, ch. 48, par. 1707(a).

While that section sets forth the elements of the traditional analysis, a wall-to-wall standard may be applied where the proposed unit consists of all of the educational employees of a single educational employer, including the nonprofessional employees with the professional. Riverside-Brookfield Township District 208 & Riverside-Brookfield Education Association, 5 Pub. Employee Rep. (Ill.) par. 1136, No. 89 — RS—0003—C (IELRB July 25, 1989) (hereinafter 5 Pub. Employee Rep. (Ill.) par. 1136); Du Page Area Vocational Education Authority, 3 Pub. Employee Rep. (Ill.) par. 1050, No. 86 — RC—0021— C (IELRB April 30, 1987) (hereinafter 3 Pub. Employee Rep. (Ill.) par. 1050), aff’d Du Page Area Vocational Education Authority v. Illinois Educational Labor Relations Board (1988), 167 Ill. App. 3d 927, 522 N.E.2d 292; Alton Community Unit School District No. 11, 2 Pub. Employee Rep. (Ill.) par. 1048, No. 85-RC-0012-S (IELRB March 11, 1986) (hereinafter 2 Pub. Employee Rep. (Ill.) par. 1048).

In a wall-to-wall unit, only a minimal showing of a community of interest among the subgroups is required to attain the goal of a convenient and efficient bargaining process and a single comprehensive agreement. Alton, 2 Pub. Employee Rep. (Ill.) par. 1048, at VII — 121.

The IEA contends that the Board should have applied a wall-to-wall unit standard since the unit for which it petitioned constitutes a wall-to-wall unit of all educational employees over whom the College exercises exclusive control of the terms and conditions of employment.

Previously, the Board has narrowly determined that the advantages of a wall-to-wall proposal are diminished if less than all employees are sought to be represented:

“In combining all employees, *** certain differentiating characteristics may be sacrificed. The benefits may be profound, especially in a small school district such as the employer’s. ***
Our approval of wall-to-wall units to achieve such benefits, however, does not mean that any lesser subgroup of employees is, therefore, also appropriate. The diminution of the requisite community of interest to establish a wall-to-wall unit simply does not pertain where less than all employees are sought to be represented. The benefits of wall-to-wall bargaining units are simply not available in such a situation, and, consequently, the sacrifice in community of interest factors cannot and should not be sanctioned.” Danville Community Consolidated School District 118, 5 Pub. Employee Rep. (Ill.) par. 1084, at IX — 194, No. 87 — RS—0001—S (IELRB April 12, 1989) (hereinafter 5 Pub. Employee Rep. (Ill.) par. 1084).

In the case at bar, the Board rejected the wall-to-wall standard since the IEA omitted those employees who work at Hill and the Board found that the seven Hill employees’ interests differ significantly from those of the employees in the proposed unit.

We have found no cases in Illinois which preclude the composition of a proposed wall-to-wall unit which includes all those employees whose terms and conditions of employment are under the direct and exclusive control of the employer where there exist other employees whose working conditions are established and controlled by an entity other than the employer.

The hearing officer noted in her March 1991 decision that the DOC employees lacked a sufficient community of interest with other College employees because of their unique work environment and “the input of the [DOC] in establishing and implementing the policies, regulation and procedures” by which the employees were governed.

Therefore, we see no policy reason why, based upon the standard described in Riverside-Brookfield and Alton, a proposed wall-to-wall unit may not be approved where the terms and conditions of employment of the included employees of a single educational employer, including the nonprofessional employees, are under the direct and exclusive control of the employer while a small number of employees are under the control of someone other than the employer. See Riverside-Brookfield, 5 Pub. Employee Rep. (Ill.) par. 1136, at IX — 317—18; Du Page Area Vocational Education Authority, 167 Ill. App. 3d at 937; Alton, 2 Pub. Employee Rep. (Ill.) par. 1048, at VII — 119—121.

The general policy supporting the requirement that all employees be included in a proposed wall-to-wall unit is predicated on the principle:

“[A]ny practical difficulties encountered in bargaining simultaneously with the different subgroups within such a unit will be more than compensated for by the convenience and efficiency of the single set of bargaining sessions and by the administration of the resulting single comprehensive bargaining agreement.” Alton, 2 Pub. Employee Rep. (Ill.) par. 1048, at VII — 121.

In the instant case, every party agrees, as does the hearing officer and the Board, that the College employees at Hill do not work under the same terms and conditions as those at the main campus and in Carthage. Those employees work at the pleasure of the DOC: if funding is not renewed, the program will be discontinued. Their wages are determined largely by the State’s budget, their working conditions — including work schedules and methods of teaching — are militated by the dangerous environment, as are even their personal lives, with security tests, drug tests and special security training a requirement. While the Hill employees ostensibly and in fact are employed by the College, the DOC exclusively controls the most important aspects of their day-to-day functioning, and the College’s influence is clearly secondary and virtually benign.

Further, it has been held that parties may agree to a noninclusive wall-to-wall unit composed of less than all employees. (Alton, 2 Pub. Employee Rep. (Ill.) par. 1048, at VII — 119.) In Alton, the Board affirmed the hearing officer’s finding that a wall-to-wall unit of certificated and noncertificated educational employees would be appropriate, pending the self-determination approval of the unit by a majority of employees in each group. The approved unit would include all of the employees, faculty and otherwise, except certain employees that the parties agreed to exclude: two secretaries, four security employees, two middle school instructional coordinators, and three food service managers.

If including all employees in the unit is so critical, we fail to see the distinction where one plaintiff may petition and vote a proposed wall-to-wall unit composed of less than all employees simply because the employer agreed to it while another group of employees is denied the same unit composition as a matter of course because the employer chooses not to agree to inclusion of less than all employees. After this stipulation by the parties, the hearing officer and the Board no longer have before them facts upon which to base a wall-to-wall determination.

Thus, we see no reason to exclude the proposed unit under a wall-to-wall standard that includes less than all educational employees, where it does include all those employees, both professional and nonprofessional, whose terms and conditions of employment are under the direct and exclusive control of the employer. We reverse the Board’s determination that the unit was inappropriate.

We also find that the Board improperly rejected the proposed unit under the section 7 traditional community of interests standard.

Judicial review of administrative agency action extends to all questions of law and fact in the record. (Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507, 554 N.E.2d 155.) As a general rule, courts accord deference to the interpretation placed on a statute by the agency. (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219; Board of Trustees of the University of Illinois v. Illinois Educational Labor Relations Board (1992), 235 Ill. App. 3d 709, 721, 600 N.E.2d 1292.) A reviewing court may reverse an administrative agency’s finding of fact only if it is against the manifest weight of the evidence. (Freeport, 135 Ill. 2d at 507.) However, where the question involved is one of law, such as the proper interpretation or construction of a statute, the Board’s finding is not binding on the reviewing court. Freeport, 135 Ill. 2d at 507; Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146; University of Illinois, 235 Ill. App. 3d at 721.

The Board found the proposed unit inappropriate because current unit members enjoy a unique employment relationship due to two working conditions “profoundly distinct” from those of other employees: the participation of faculty in the College’s decision-making process, and the faculty’s access to and participation in determining tenure for other faculty.

The Board found the faculty’s “collegial” role in the College’s decision-making process to be a decisive factor in rejecting the proposed unit, citing N L R B v. Yeshiva University (1980), 444 U.S. 672, 63 L. Ed. 2d 115, 100 S. Ct. 856.

Yeshiva determined that the faculty of a private university were managerial employees and thus excluded from coverage under the National Labor Relations Act (NLRA). While the Board here conceded that the Illinois Act differs from the NLRA because the former explicitly extends coverage to higher education employees to include faculty, the Board found the observations in Yeshiva instructive regarding the “distinctive character collegial decision-making affords higher education faculty members as distinguished from other educational employees.”

The Board determined the collegial role of the faculty at the College was established since certain College policies and regulations state that the administration must seek faculty advice on educational matters through the faculty assembly and its committees; the faculty assembly has been consulted on matters such as College curriculum, faculty evaluation, academic standards and student services; faculty is entitled to have one of its members participate in meetings of the College’s board of trustees; and the assembly must be consulted on changes affecting its participation in College decisions.

A second significant factor that the Board focused upon was that faculty could obtain tenure while the other employees could not and that three faculty members participate in deciding whether other faculty will receive tenure.

The Board found that differences in duties also contributed to a lack of a community of interest between faculty and nonfaculty employees: faculty duties focus on teaching, counseling, preparing courses and materials, compiling material for class and serving on faculty committees while classified employees clean and maintain buildings, perform secretarial and clerical tasks, process data, promote College facilities, work with the athletic department, monitor the fitness center, and supervise campus security and traffic.

The Board also found differences in work year, work hours, method of determining pay, range of pay and qualifications. A historical pattern of recognition was also found to favor denying the proposed unit because the College has recognized the existing unit since 1974.

These findings are not borne out by the record. We disagree with the Board’s determination that the unit was inappropriate.

We recognize that, as a general rule, courts accord deference to the interpretation placed on a statute by the agency charged with its administration. Decatur, 122 Ill. 2d at 361; University of Illinois, 235 Ill. App. 3d at 721.

However, section 7(a) of the Act sets out the factors to be considered in determining an appropriate unit and we find that the Board improperly placed undue emphasis on two “working conditions” — the faculty’s participation in the tenure process and participation in the College’s decision-making process — to reach its decision.

Section 7(a) does not require that a proposed unit be the “most appropriate unit”; rather, it designates that the unit be “appropriate.” The statute requires that in determining the appropriateness of a unit, each case should be individually considered “to ensure employees the fullest freedom” in exercising the rights guaranteed them under the Act. Ill. Rev. Stat. 1991, ch. 48, par. 1707.

The Board improperly and admittedly focused upon governance/ collegiality and tenure while the facts and circumstances surrounding the other issues at this small community college clearly indicate that an identifiable community of interests exists, as viewed from the employees’ perspective.

We believe that the Board placed undue emphasis upon those two factors such that all other factors failed to receive a balanced weighing in accordance with the goal of the statute — to ensure that employees receive the greatest freedom to exercise their rights under the Act, including the right to membership in a unit composed of both professionals and nonprofessionals. Ill. Rev. Stat. 1991, ch. 48, par. 1707.

Because we find the Board has misinterpreted the statute, we need not consider its decision as binding, and find that there exists a community of interest such that the proposed unit is appropriate. Freeport, 135 Ill. 2d at 507; Burbank, 128 Ill. 2d at 345.

Furthermore, even if we were to examine the Board’s decision as binding, we would find it against the manifest weight of the evidence since we find the record here fails to demonstrate an overwhelming degree of faculty governance in the College’s decision-making process and that the process relating to tenure is not a singular feature that automatically destroys a community of interest.

In Yeshiva, upon which the Board relied for its governance/collegiality argument, the collegiality was demonstrated through the faculty’s exercise of control over both academic and nonacademic matters. Academically, the faculty determined what courses would be offered, when and to whom the classes would be offered; they determined teaching methods, grading policies and graduation standards; they determined which students would be admitted, which would be retained and which would graduate; and occasionally they determined the size of the student body, tuition fees and made proposals for the location of a school. In nonacademic matters, the faculty was dominant in faculty hiring, tenure, sabbaticals, terminations and promotion. Yeshiva, 444 U.S. at 677, 686, 63 L. Ed. 2d at 122, 128, 100 S. Ct. at 859-60, 864.

Yeshiva is easily distinguished since, in that case, there was no doubt that the faculty was the dominating force behind a majority of decisions affecting all areas of campus life. It was never contended that the faculty there held only an advisory role in university affairs. (Yeshiva, 444 U.S. at 683, 63 L. Ed. 2d at 126, 100 S. Ct. at 862.) However, in the case at bar, the Board has placed disproportionate emphasis on the faculty’s advisory role.

Here, there exists a faculty assembly; five standing committees: curriculum, faculty development, student services, marketing and college welfare; a tenure conference committee; a planning committee; the board of trustees; and any other committee which the College’s board of trustees authorizes to be organized.

The board of trustees, elected by the voters of District 518, is the governing body of the College, and members include a faculty representative, a classified employee and a student representative among the members. The board’s duties and powers include providing and maintaining revenue to run the College; calling for annual audits; payment of wages, orders and bills; assigning contracts for all materials or work in excess of $5,000; providing indemnity insurance; issuing bonds and raising monies for a working cash fund; and purchasing and leasing sites and erecting buildings.

All contractual faculty members are automatically members of the faculty assembly, which also has several subcommittees. However, at least four nonfaculty employees — two mid-management employees, a public coordinator of information, and a secretarial support staff employee — are also members of the faculty assembly or its subcommittees. The record is devoid of information regarding the faculty assembly’s duties or responsibilities, outside of electing and appointing faculty representatives to various College committees.

Faculty, students, staff and administrative personnel each select members to the five standing committees. The committees meet on an ad hoc basis and report to a designated College official, who makes a recommendation to the College president, who in turn makes a recommendation to the board of trustees, which makes the final decision. There is no evidence as to the frequency of which committee recommendations are followed or ultimately implemented by the board of trustees..

The tenure conference committee consists of three faculty members, the chief academic officer and a College administrator. The faculty members compile tenure evaluations made by faculty, students, supervisors and the candidate for tenure and present them to the full tenure committee and the college’s office of instruction. The tenure committee and the office of instruction both prepare recommendations and meet in conference to reach a consensus. That recommendation is made to the president of the College, who makes a recommendation to the board of trustees, which makes the final decision. The record is silent as to the effect of the faculty employees’ recommendations.

The planning committee advises the chief executive officer of the College on the needs and goals of the College, but the record fails to state how that committee is staffed and how effective are any recommendations it might have made.

The board of trustees has established other committees it deemed necessary, such as the business occupations advisory committee, which meets annually to discuss curriculum changes with employees who work, hire or are trained in that area. At least one faculty employee and three classified employees have served on that committee.

The Board stated in its decision that collegiality weighed heavily against the finding of an appropriate unit because:

“The Administration must seek the advice of the faculty on educational matters through the Faculty Assembly and its standing committees ***. The Assembly must also be consulted on changes affecting its participation in College decisions.” (Emphasis added.)

The record does not support the conclusion that the faculty at the College exerts the kind of influence that we observed in Yeshiva. The evidence is very clear that the power the faculty wields is in the form of recommendations. We have not been supplied any figures as to the rate of acceptance of such recommendations by the board of trustees. Further, classified employees serve on every college-wide committee that the faculty does, including the faculty assembly, except for the tenure committee. Even the tenure commission does not grant tenure, but rather makes recommendations on those decisions to the board of trustees.

Historically, tenure has not been a decisive factor in a proper community of interests analysis. The Board has approved other units where both tenured employees and nontenured employees were members. See, e.g., Danville 5 Pub. Employee Rep. (Ill.) par. 1084 (teachers and teacher aides were approved as a unit).

While collegiality, governance and peer review are certainly differences between the faculty and classified employees, they are not magic words that automatically disqualify a proposed unit, but are merely factors to be examined and weighed with other elements in considering whether a community of interest exists.

A proposed unit should be certified if it meets the applicable standards in the Act, even though a separate unit of classified employees would also be an appropriate unit. See University of Illinois (Board of Trustees), 7 Pub. Employee Rep. (Ill.) par. 1103, No. 90— RS — 0017—S (IELRB September 13, 1991).

Even if we were required to consider the Board’s decision as binding, we would find it improper and against the weight of the evidence since an examination of the factors clearly favors approval for the proposed unit.

We now examine those elements of section 7 which were not fully considered by the Board.

BENEFITS, WAGES AND HOURS

All employees in the proposed unit, except security personnel who retain no benefits, receive the same life, health and dental insurance; have the same provisions for sick, personal, maternity and jury duty leave; share the same tuition reimbursement and travel expenses; can join the same credit union; and are part of the same retirement system. Their salary ranges take into account experience and education, and both groups are paid over a 12-month period and have the same pay dates. While accrued differently, both groups receive the same number of sick days per year, and also receive the same number of personal days. Classified employees receive paid holidays and vacations while faculty receive paid professional and sabbatical leave.

The Board argues that there are differences in the employees’ work year in that faculty work either 9½- or 11-month schedules and classified employees work either 9½-, 11-, or 12-month schedules. However, counselors, who are members of the current unit, work 12-month schedules. Thus, classified employees would not be working a schedule different from one group already represented in the unit.

Further, while daily work hours do differ somewhat between the groups, we point out that classified employees are required to work a 40-hour week, the same as counselors who are current unit members.

UNIQUE ENVIRONMENT

Section 7 directs that any other relevant factors be considered in determining the appropriateness of a unit. A significant factor in this case is that the College is a small employer with a small number of proposed members in the unit which dramatically affects the employees’ working environment.

The community in which the employees work is a closely knit one in which the 95 full-time faculty and classified employees work in three buildings and are in close contact through work and social activities; they are members of the same committees; attend the same informational meetings, seminars, classes, workshops and other College-sponsored functions; attend the same college-wide social functions; and many interact on a daily basis.

The smaller community in this case dictates we distinguish those Board decisions involving large universities where faculty and administrative employees have little contact or functional interaction. See, e.g., Board of Regents of State of Illinois, 2 Pub. Employee Rep. (Ill.) par. 1069, Nos. 84-0008, 84-0012 (IELRB May 30, 1986).

The Board approved a unit in Sangamon State University (Board of Regents), 6 Pub. Employee Rep. (Ill.) par. 1148, No. 90 — RC— 0026 — S (IELRB October 4, 1990), which it found only minimally exceeded standards of unit appropriateness since the two groups of building service workers and food service workers had no functional integration, interchange or common supervision, and minimal contact except for breaks in the same cafeteria. The case at bar presents a much stronger argument for determining a community of interests since all the employees involved share many common benefits and working conditions: substantial work-related contact and social contact; common supervisors for many employees and faculty; functional integration of positions; and some interchange of duties.

FUNCTIONAL INTEGRATION AND INTERCHANGEABILITY

In the reality of a smaller community, employees’ duties often overlap: several classified employees have taught credit or noncredit courses at the College and have been guest speakers in classes taught by the faculty. For example, a division secretary taught Typing II; a building maintenance worker taught welding; the coordinator of audio-visual services taught a GED course; a word processing employee was a guest lecturer and demonstrator for several classes; a division secretary substituted for faculty on two occasions and conducted a nursing tour and orientation in place of a faculty member.

The educational backgrounds of faculty and classified employees are not starkly different in that not all faculty members are required to have college degrees, while some mid-management classified employees are required to have a bachelor’s degree, or an equivalent level of college experience or training. All are required to have a high school degree.

We disagree with the Board’s blanket interpretation that duties of the two groups differ greatly since classified employees have performed or perform regularly tasks that the Board designated as the sole province of faculty: teaching, counseling, preparing courses and materials, compiling material for class and serving on faculty committees.

It is further noted that physical plant personnel have picked up and delivered mail and acted as security guards while security guards have performed physical plant duties.

CONTACT AMONG EMPLOYEES

Many classified employees, faculty and counselors interact daily, both on a functional and personal level.

Certainly among the secretarial and support staff there is daily contact with faculty and counselors through the typing of assignments, syllabi, and tests; fielding phone calls; occasionally proctoring exams; questions by faculty regarding financial aid or jobs for students; questions regarding student counseling problems; administration of tuition reimbursement, payment vouchers, payroll and personal checks; ordering and purchasing textbooks for classes; and assisting faculty in obtaining student records, transcript, registration lists and other administration or admission requirements.

Faculty also have work-related contact with learning resource center (LRC) personnel when faculty need materials other than textbooks and direction in how to use those materials; one LRC assistant is a math tutor who administers make-up exams and discusses tutoring problems with faculty. Faculty must also contact other employees such as the typesetter who designs booklets and programs compiled by faculty; the assistant who plans the master schedule each semester; a public information coordinator who publicizes information for faculty; physical plant personnel to set up a room for faculty use; the maintenance employee who picks up and delivers mail each day; security personnel when there is a student problem or extra security is needed; data processing for test-grading; word processing for all copies, syllabi, tests and mailings; and athletic coaches regarding student progress in class.

There is also a great deal of social interaction on the small campus: all employees attend employee picnics, retirement parties and holiday luncheons. All employees are involved in campus events such as The Great American Smoke-Out, United Way campaigns, awards events, graduation receptions; and all employees are invited to meetings such as non-smoking classes, various wellness seminars and discussions of the College’s financial situation. Further, both faculty and other employees work side by side at athletic events, earning the same hourly rate, and both groups use the same cafeteria at the College.

COMMON SUPERVISION

In many instances, faculty and classified employees are supervised by the same person. Each educational department has a division chairperson who supervises both faculty and classified employees in the division. Division chairpersons also supervise other classified employees. For example, the chairperson of the math and science division also supervises the assistant supervisor of the campus fitness center, who is a mid-management employee; and the chairperson of the agricultural and industrial division supervises the tool room attendant, who holds a physical plant position.

Another term of employment that both groups share is a grievance procedure that is essentially the same: The first step is an informal discussion with the immediate supervisor; the second step is written correspondence to a higher supervisor; and the third step is a written appeal to the president of the College. Faculty may then address the board of trustees and go to arbitration.

HISTORICAL PATTERN OF RECOGNITION

We also disagree with the Board that because the unit has represented faculty and counselors since 1974, a historical pattern of recognition favors precluding addition of new members.

The record establishes that throughout the history of the faculty’s negotiations with the College, classified employees’ benefits have historically paralleled those of faculty employees. As the hearing officer stated:

“Historically, each year, classified employees have been given notice of their pay increases only after collective bargaining negotiations for the faculty contract in the given year have concluded. The percentage increases in wages for classified employees have historically paralleled the percentage increase negotiated in the faculty contracts. Also, classified employees’ benefits of health insurance, sick leave and maternity/paternity leave have historically paralleled those same benefits as negotiated for the faculty unit.”

Because the two groups of employees have been in symmetry for so long, the interrelationship between them clearly weighs in favor of finding a community of interest.

In considering all of the factors set out in section 7 of the Act, we find that there is certainly a community of interest demonstrated in this case. The unique, small-campus environment; the historical pattern of recognition and negotiations flowing from the faculty bargaining; the high level of functional integration between the two groups; the interchangeability of certain functions and duties; the high level of functional and social contact among all employees; the common benefits and grievance procedures; and the desire of the employees to seek self-determination on this issue all support such a finding.

For all of the foregoing reasons, we reverse the Board’s dismissal of the IEA’s petition and hold that the proposed unit is appropriate and that the Board is directed to hold an election as provided by the Illinois Educational Labor Relations Act.

Reversed and remanded.

TULLY, P.J., and RIZZI, J., concur.


author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDOLPH JARRELL et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1 — 92—1674, 1 — 92—1719 cons.
    Opinion filed June 30, 1993.

      Rita A. Fry, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan R. Schierl, and Theodore R. Jamison III, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a joint jury trial, defendants Rudolph Jarrell and George Washington were convicted of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1) and sentenced to five-year terms. On appeal, defendants contend that: (1) the trial court deprived them of a fair trial by failing to determine that they knowingly and intelligently waived their right to be tried separately and by failing to determine, sua sponte, that severance was necessary; (2) the police lacked probable cause to arrest them; and (3) they received ineffective assistance of counsel in that their attorneys failed to challenge the constitutionality of their arrests. In addition, both defendants complain about their sentences. Jarrell contends that his sentence must be vacated because the trial court failed to consider evidence in mitigation. Washington argues that his sentence must be vacated because the trial court failed to determine whether he was eligible for participation in a drug treatment program.

Prior to trial, Jarrell filed a petition for severance, wherein he alleged that Washington’s defense was in conflict with and antagonistic towards his own defense, and that severance was necessary to ensure that he received a fair and impartial trial. At the hearing on the petition, defendants’ respective counsel informed the court that defendants did not want a severance, but desired to be tried jointly. The trial judge then asked each defendant whether he wished to waive his right to be tried separately, to which each responded affirmatively.

The following facts were adduced at the joint trial. Officer William Filipiak of the Chicago police department testified that in the early morning hours of August 21, 1991, he and Officer Eleanor Rear-don were patrolling an industrial area in the vicinity of 105th and Throop in Chicago, where a rash of burglaries had recently been reported. At approximately 1:40 a.m., as they approached 10531 South Throop, Filipiak observed defendant Washington walking away from the perimeter fence surrounding Smedberg Machine Corporation. A portion of the fence had been peeled back and was held open by clamps, creating an opening through which people could pass. Washington was carrying a long brass bar as he walked east across Throop Street toward a car parked beside a curb with its hood up. When Washington saw the officers, he dropped the brass bar in a grassy area next to the car. Defendant Jarrell was standing in front of the open hood of the car.

The officers approached the car, which belonged to Jarrell, and observed several more brass bars lying in plain view in the rear seat area. Additional brass bars were later found in the trunk of Jarrell’s car. The officers began questioning defendants when they noticed some buckets of tools and clamps as well as a ladder, stamped “Smedberg Corporation,” in a weeded area 10 to 20 feet from the car. These items as well as the brass bars, each valued at $2,500, were later identified as belonging to Smedberg.

The officers asked defendants what they were doing in the area. Washington stated that he had just come from a friend’s house located less than a block from where Jarrell’s car was parked. Reardon proceeded to the house to verify Washington’s story. She knocked on the door, but no one answered. Filipiak then called Officer Hofer to the scene. When Hofer arrived, the officers arrested defendants and placed them in the back of the squad car for security purposes. Filipiak and Hofer went to investigate the hole in the fence. They entered the Smedberg property through the hole and observed a portion of sheet metal that had been torn away from the building’s exterior, leaving a hole large enough for a person to enter the building. They also observed that a window had been pushed out.

Reardon transported defendants and the recovered items to police headquarters. Filipiak followed in Jarrell’s car. Filipiak subsequently contacted Raymond Overton, the chief electrical project engineer at Smedberg, who came to the police station and identified the brass bars, tools, and ladder as belonging to Smedberg. Overton testified that he had seen the brass bars the day before on the factory floor.

Hofer testified regarding a conversation he had with Jarrell several hours after the incident. After being advised of his constitutional rights, Jarrell told Hofer that he and Washington were together prior to the incident and that Washington instructed him to drive to the location on Throop. Washington went into the Smedberg building and removed the items that the officers found in and near the car. Jarrell helped Washington carry the items to the car. Jarrell never went inside the building and had never before been to that location.

Hofer subsequently interviewed Washington. Hofer advised him of his constitutional rights, after which Washington gave an oral statement. He stated initially that he and Jarrell had gone to see his brother who lived down the street from the Smedberg factory. When Hofer confronted Washington with the fact that his brother was in the hospital, Washington changed his story and stated that he had gone to his brother’s house to find out from his sister-in-law his brother’s hospital room number. On the way from his brother’s house, he and Jarrell saw the stolen items in the middle of the street, and they stopped to pick them up.

Jarrell testified at trial that on the morning in question, he and Washington were driving from Washington’s brother’s house when his car overheated at 105th Street and Throop. He raised the hood and removed the radiator cap to allow water and antifreeze to escape. Washington was standing beside him in front of the car while he tried to repair it. Police officers arrived shortly thereafter and began questioning them. The officers inspected the area around his car and discovered the brass bars in the grass. Jarrell denied telling police that he saw Washington carrying anything from the Smedberg building. The brass bars that were found in his car were put there by police after he had been placed in the squad car.

On cross-examination, Jarrell stated that they had just returned from seeing Washington’s aunt, not his brother or sister-in-law. He denied telling police that the brass bars were used for work purposes and denied giving them an oral statement. He stated that the officers were unable to drive his car from the scene, but instead had to push it to the police station.

Defendants first contend that the trial court deprived them of a fair trial by failing to determine and establish of record that their right to be tried separately was knowingly and intelligently waived. Defendants further contend that the trial court had an affirmative duty to determine, sua sponte, that separate trials were necessary and was obligated to order a severance notwithstanding their express desire to be tried jointly.

In raising the first of these two related issues, defendants acknowledge the lack of any statute or supreme court rule which would require a specific inquiry into this matter. Nevertheless, defendants argue that as a policy matter, we should adopt the approach taken by the courts with respect to the waiver that follows from the entry of a guilty plea. In Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, the United States Supreme Court held that in accepting a guilty plea, the trial court has a duty to “canvass[ ] the matter "with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.” (Boykin, 395 U.S. at 244, 23 L. Ed. 2d at 280, 89 S. Ct. at 1712.) The Court emphasized the importance of this duty in light of the fact that a guilty plea is itself a conviction, with nothing remaining but the entry of judgment and the determination of punishment. It was because of Boykin that our supreme court enacted Supreme Court Rule 402 (134 Ill. 2d R. 402), which requires the trial court to make an independent determination of whether defendant knows his rights, and the consequences of relinquishing those rights in pleading guilty to an offense.

As a reviewing court, however, our function is to interpret the law and enforce the law as enacted, not determine what the law ought to be. (People v. Raso (1992), 234 Ill. App. 3d 1099, 602 N.E.2d 53.) We are not free to impose the same duty in the context of a defendant’s waiver of his right to a separate trial that the courts have created in the context of guilty pleas and waiver of rights arising therefrom. We are unaware of any Supreme Court opinion, Illinois Supreme Court rule, or statute which would place on the trial court the duty of “canvassing” the matter of severance with the defendant to ensure both that he has a full understanding of what a joint trial entails and that he has knowingly and intelligently waived his right to be tried separately.

Nor does the trial court have a duty under existing law to deter mine, sua sponte, if separate trials are necessary and to order severance in that event, even if to do so would contravene defendants’ ex press desire to be tried jointly. We find Wheat v. United States (1988), 486 U.S. 153, 100 L. Ed. 2d 140, 108 S. Ct. 1692, which defendants cite in support of this contention, to be inapposite since the sole issue there was whether a defendant has a sixth amendment right to choose the same counsel as his codefendants, despite the possibility of a conflict of interest which might arise from such joint representation. That is clearly not the issue here.

In Illinois, the applicable statute pertaining to severance provides that if it appears that either a defendant or the State will be prejudiced by a joinder of related defendants in a single charge for trial, the court may order separate trials or grant a severance. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 8.) Illinois courts have interpreted this statute to require the party requesting a severance to demonstrate before trial how he will be prejudiced. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Stamos (1991), 214 Ill. App. 3d 895, 574 N.E.2d 184.) In this case, while Jarrell indicated prior to trial his initial desire for severance, he later changed his mind against the advice of counsel and, along with Washington, indicated to the trial court a desire to be tried jointly. The trial court questioned them separately to verify their wishes. Neither defense counsel objected to the trial court’s subsequent ruling granting defendants the joint trial they had requested. As with any other right, the right to be tried separately may be waived, and a failure to move for severance forecloses any claim of prejudice which may have resulted from a joint trial. (People v. Appold (1976), 39 Ill. App. 3d 814, 350 N.E.2d 511; People v. Rutledge (1973), 14 Ill. App. 3d 290, 302 N.E.2d 425.) In light of the foregoing, we find no error in the trial court’s grant of defendants’ request to be tried jointly.

Defendants also argue, for the first time, that the police lacked probable cause to arrest them. It is well established that where the contention that a defendant was arrested without probable cause was not made in a motion to suppress during trial, or in a post-trial motion, and the issue is raised for the first time on appeal, the claim of error is waived. (People v. Accardo (1985), 139 Ill. App. 3d 813, 487 N.E.2d 664.) However, since defendants assert that their respective trial counsel did not provide them with effective assistance because they failed to properly preserve the issue of the illegal arrest, we will address the issue of probable cause in resolving defendants’ ineffective assistance claim.

Probable cause exists where the facts within the arresting officer’s knowledge are sufficient to warrant an individual of reasonable caution to believe that the person arrested has committed an offense. (People v. Stewart (1991), 217 Ill. App. 3d 373, 577 N.E.2d 175.) The officer may rely on his knowledge and experience to draw reasonable inferences from observed facts. (People v. Lee (1986), 151 Ill. App. 3d 510, 502 N.E.2d 399.) Probable cause requires more than mere suspicion that a defendant has committed or is committing an offense, but it does not require the arresting officers to possess evidence sufficient to convict the defendant. In re D.G. (1991), 144 Ill. 2d 404, 581 N.E.2d 648.

Filipiak testified that defendants were placed under arrest when he and Reardon placed them in the squad car. This occurred before he and Hofer went onto the Smedberg property to investigate. Accordingly, we will look to the facts then known to the officers to determine whether probable cause existed to arrest defendants.

When the officers approached the scene, which they knew was an area in which a rash of burglaries had recently been reported, they observed Jarrell’s car parked across the street from the hole in the fence surrounding the Smedberg factory. They saw Washington walking away from the fence carrying a brass bar. He was three to five feet from the fence when the officers first spotted him and was headed for Jarrell’s car. When he saw the officers, he immediately dropped the brass bar. Jarrell was standing outside the car in front of the open hood. The officers saw several more brass bars lying in plain view in the rear seat area of Jarrell’s car and later saw more such bars in the trunk. Jarrell told the officers that the brass bars were used by him for work purposes.

As the officers were questioning defendants, they observed buckets of tools and clamps as well as a ladder stamped “Smedberg Corporation” lying near the car. They also noticed the hole in the fence, which was large enough for a person to walk through and was being held open by two clamps. When the officers asked Washington what he was doing in the area at that time in the morning, he said he had just come from the house of a relative who lived nearby. He pointed to a house where his relative allegedly lived, but when an officer knocked on the door, no one answered.

Based on the foregoing, we find that a reasonable person of caution would conclude that defendants were committing the offense of burglary. In support of their contention that the officers lacked probable cause to arrest them because they had not yet verified that a crime had been committed, defendants cite People v. Rodriquez (1987), 153 Ill. App. 3d 652, 505 N.E.2d 1314. In that case, this court held that “[w]here the police merely suspect defendant has committed a crime and arrest him before commission of the crime is verified, the arrest cannot be sanctioned.” (Rodriquez, 153 Ill. App. 3d at 659, 505 N.E.2d at 1319.) Here, however, there was far more than mere suspicion that criminal activity was afoot. The police officers had probable cause to arrest defendants.

Having determined that the officers had probable cause to arrest defendants, we turn briefly to. defendants’ ineffective assistance claim. They base this claim on defense counsel’s failure to raise the issue of probable cause for the arrest. Our review of the record, as discussed above, indicates that a probable cause challenge would not have been favorably met. Because we have found that the officers had probable cause to arrest defendants, we necessarily find defendants’ ineffective assistance of counsel claim to be without merit.

Jarrell also contends that his sentence must be vacated because the trial court failed to consider mitigating factors when it sentenced him to a five-year term of imprisonment. The determination of the appropriate sentence to impose in a given case is a matter within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of that discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 572 N.E.2d 937.) The Illinois Constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) The trial court is not required to articulate the process by which it concluded that the penalty imposed was appropriate, nor is it required to articulate its consideration of mitigating factors. People v. Boclair (1992), 225 Ill. App. 3d 331, 587 N.E.2d 1221.

The statutory penalty range for burglary, a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1), is from three to seven years of imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(5)). The trial judge sentenced Jarrell to a term of five years, which is mid-way through the range of possible sentences. At the sentencing hearing, the trial judge was presented with factors in aggravation, which included several prior misdemeanor and felony convictions. She was then presented with factors in mitigation. While she articulated her desire to impose the same sentence on both defendants, the fact that she did not articulate for the record her consideration of the aggravating and mitigating factors does not mean that she did not consider them in arriving at an appropriate sentence. Given Jarrell’s criminal background, which includes four theft and related convictions, we cannot say that the trial judge abused her discretion in sentencing Jarrell to five years’ imprisonment.

Finally, Washington contends that the trial judge improperly failed to consider the Treatment Alternatives to Street Crime (TASC) program as a sentencing alternative after she was informed that he was addicted to heroin. The State agrees and confesses error on this point. (See People v. Henry (1990), 203 Ill. App. 3d 278, 560 N.E.2d 1205.) Consequently, we vacate his sentence of imprisonment and remand for a new sentencing hearing consistent herewith.

Accordingly, as to defendants’ convictions and Jarrell’s sentence, the judgment of the circuit court of Cook County is affirmed. As to Washington’s sentence, the matter is remanded for a new sentencing hearing.

Affirmed in part; vacated in part and remanded.

EGAN and GIANNIS, JJ., concur.