author: PRESIDING JUSTICE WOMBACHER

text:
    VALLEY PONTIAC-CADILLAC-JEEP-EAGLE, INC., Plaintiff-Appellant, v. JIM THORNTON PONTIAC CADILLAC, INC., Defendant-Appellee (General Motors Corporation et al., Defendants in Garnishment).
    Third District
    No. 3—88—0546
    Opinion filed August 25, 1989.

      Armstrong, Surin & Engels, of Ottawa (Craig M. Armstrong, of counsel), for appellant.
    Darrell K. Seigler, of Ottawa, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

On January 8, 1988, Valley Pontiac entered into an asset purchase agreement with the defendant, Thornton Pontiac, in order to purchase the defendant’s automobile dealership. The purchase price was set at $580,000, which included a $150,000 cash down payment.

Valley Pontiac was also granted an option to purchase the building which housed the dealership.

In contemplation of the closing of the dealership sale, a Valley Pontiac shareholder purchased the real estate occupied by the dealership.

Subsequently, Valley Pontiac entered into a management agreement with Thornton Pontiac to permit Valley Pontiac to fund the operations of the dealership, pending approval by General Motors to transfer the franchise.

In March 1988, Champion Federal Savings and Loan Association of Bloomington, which was financing Thornton Pontiac’s new motor vehicles, filed suit against Thornton Pontiac. The complaint included counts alleging fraud, consumer fraud and deceptive practices, breach of contract and an action to recover paid overdraft.

The following month, Valley Pontiac entered into a substituted asset purchase agreement with Thornton Pontiac. Thornton Pontiac issued a promissory note for $150,000 to Valley Pontiac which was due and payable in the event the closing on the purchase of the dealership did not occur. The previously executed management agreement was amended to conform to the terms of the new purchase agreement.

General Motors rejected the application to transfer the franchise, citing the pending litigation brought against Thornton Pontiac by Champion Federal. General Motors informed Thornton Pontiac of its intention to exercise its right of first refusal to purchase the dealership assets.

Subsequently, the asset purchase agreement was terminated and Valley Pontiac made demand upon Thornton Pontiac to pay on the promissory note.

Thornton Pontiac was eventually sold for $592,500 to Ozer Oldsmobile-GMC Truck, Inc. Estimated debts of the dealership at the time of the transfer were $1,489,976.25.

On July 11, 1988, Valley Pontiac filed a complaint and confession of judgment note against Thornton Pontiac; a judgment in the amount of $177,931.51 was obtained.

A few days thereafter, Valley Pontiac caused a citation to discover assets to be served upon Thornton Pontiac. Valley Pontiac also initiated third-party nonwage garnishment proceedings.

Thornton Pontiac promptly filed a motion to quash garnishment summons due to Valley Pontiac’s failure to confirm the judgment. Valley Pontiac filed a motion to strike the motion to quash. The motion contended that a nonwage deduction order did not require a confirmation of the judgment.

The trial court allowed Thornton Pontiac’s motion to quash, relying on Federal case law which indicated that both wage and nonwage garnishments required a confirmation to comply with due process rights. The trial court’s disposition of the subject motion was made pursuant to the rule of law in Scott v. Danaher (N.D. Ill. 1972), 343 F. Supp. 1272. In Scott, the district court held that a former version of the Illinois garnishment statute, when invoked to satisfy a judgment obtained by confession, violated the due process clause of the fourteenth amendment because of the failure of the statute to provide a means to determine whether or not the debtor had “knowingly and voluntarily” waived his right to notice and hearing at the time that the garnishment summons issued.

We parenthetically note that, while the subject appeal does not raise due process arguments, the issues brought for review implicitly concern the constitutional sufficiency of a garnishment proceeding based upon an unconfirmed judgment by confession. To the extent that this concern is evident, we believe the contention is misplaced. The Illinois Code of Civil Procedure has codified safeguards in the statute which provides for judgments by confession. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301.) The current statute has been considered in light of the aforementioned Federal authority and is without constitutional objection. There is considerable judicial awareness of the nature of judgments by confession since they are entered without contest. For this reason, the courts exercise equitable jurisdiction and apply different considerations from those involved when a party seeks relief from other types of judgments. Trial courts, and courts of review, afford adequate opportunity for consideration in accordance with the factual situations presented by petitions to vacate or to open judgments by confession.

The trial court subsequently quashed the citation proceedings. Both orders were made appealable.

Valley Pontiac filed a motion to vacate, principally asserting the doctrine of estoppel, based upon the alleged fraudulent actions of Thornton Pontiac in the subsequent sale of the dealership to another buyer, without repaying Valley Pontiac’s down payment.

The motion was denied and made appealable by the trial court. Valley Pontiac now appeals the order quashing the garnishment summons; the order quashing the citation to discover assets; and the order denying its motion to vacate.

Section 2 — 1301 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301) provides the statutory method for judgment by confession. Sections 12 — 701 and 12 — 801 of the Code provide the procedures for nonwage and wage garnishments, respectively. (Ill. Rev. Stat. 1987, ch. 110, pars. 12 — 701, 12 — 801.) After examining the statutory schemes, this court determines that the trial court erred in its disposition of all three motions now under review. Further, for the reasons expressed above, we believe that it is a misconstruction of the analysis expressed in Scott to apply its holding to the current nonwage garnishment scheme.

Section 12 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 701) sets out the garnishment procedure in a nonwage proceeding, also exempting benefits and refunds payable by pension or retirement funds. The statute is designed to make the assets of the judgment debtor available for application in payment of the judgment against him. In contrast to this statutory section is the definition of “judgment creditor” found at “Part 8. Wage Deductions” of the garnishment scheme. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 801.) “Judgment creditor” is therein defined as the recipient of any judgment, except a judgment by confession which has not been confirmed.

A comprehensive reading of Part 8 indicates that it exclusively governs the enforcement of judgments obtained by a judgment creditor asserting a claim involving an employer-employee relationship. Therein, at section 12 — 813, entitled “Judgment by Confession” (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 813), a confirmation of judgment is required when seeking a deduction order pursuant to a judgment by confession not served on the defendant. There is no parallel requirement of a prior issuance and service of summons confirming judgment, in the context of a nonwage proceeding.

Thornton Pontiac principally relies on two appellate court decisions in pursuance of its contention that a confirmation is required in both wage and nonwage proceedings. The reliance on City-Wide Realty Co. v. Fryer (1979), 70 Ill. App. 3d 649, 388 N.E.2d 980, is misplaced. City-Wide principally involved a discussion of a wage deduction order; the instant case involves a nonwage proceeding. A thorough examination of the nonwage garnishment scheme is not evidenced in the case. Equally misplaced is reliance on Farmer City State Bank v. Henry (1985), 138 Ill. App. 3d 854, 486 N.E.2d 297. Farmer City involved the appeal of trial court orders to sell nonexempt personal property of the defendant to satisfy a judgment by confession entered upon the defendant’s note. The case does not provide sufficient examination of the garnishment scheme per se, and its narrow holding does not control the instant issue.

Part 7 of the garnishment statute is the applicable law in a non-wage proceeding. Pursuant thereto, and by contrast to Part 8, a confirmation of judgment is not required. Consequently, we believe that Valley Pontiac’s compliance with the stated procedural prescription did not offend any rights owing to Thornton Pontiac.

We now turn to an examination of the propriety of the trial court’s order quashing the citation proceedings, an order we believe was issued in error.

A citation to discover assets is a supplementary proceeding designed to aid a judgment creditor to discover a debtor’s property for the purpose of applying the property in satisfaction of a judgment. Foluke v. Peoples Gas Light & Coke Co. (N.D. Ill. 1984), 38 Bankr. 298.

The Illinois Supreme Court’s recent disposition of an appeal brought in the case of Bank of Aspen v. Fox Cartage, Inc. (1989), 126 Ill. 2d 307, 533 N.E.2d 1080, noted that the due process requirements of notice and hearing do not require a rigid or generic formula. In Aspen the court held that a citation to discover assets which prohibited a third party from transferring property in its possession, which belonged to a judgment debtor, did not deny due process. We likewise believe that the proceeding to discover assets in the instant case was properly pursued and validly executed.

In conclusion, we believe that both the nonwage garnishment proceeding and the supplemental proceeding procedures are constitutionally sound. Therefore, the trial court’s decision to quash the garnishment summons and citation proceedings initiated by Valley Pontiac was in error.

For all of the foregoing reasons, the judgment orders of the circuit court of La Salle County are reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STOUDER and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    GLORIA PHILLIPS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (C.F. Braun Constructors, Inc., Appellee).
    Third District (Industrial Commission Division)
    No. 3—89—0028WC
    Opinion filed August 25, 1989.

      Marc A. Perper and Mitchell W. Horwitz, both of Horwitz, Horwitz & Associates, Inc., of Chicago, for appellant.
    Michael Gahan, of Rooks, Pitts & Poust, of Joliet, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Gloria Phillips, sought worker’s compensation benefits for an ankle and leg injury allegedly suffered as a result of an accident which occurred while she worked for respondent, C.E Braun Contractors, Inc. An arbitrator denied benefits after finding that claimant failed to prove a causal relationship between the accident and her present condition of ill-being. The Industrial Commission (Commission), with one member dissenting, affirmed that decision. The circuit court of Will County confirmed the Commission’s decision. Claimant appeals, contending that the Commission’s decision is against the manifest weight of the evidence.

Claimant worked as a secretary for respondent. On June 26, 1985, she was walking down a step at work when her left ankle and knee twisted inward. She experienced pain and notified her supervisor of the accident. The shooting pain in her foot and ankle radiated up into her left leg. She was treated by several physicians who diagnosed a sprained ankle and initially advised her not to work. Finally, in 1986 a physician diagnosed, and began treating for her for, a nerve injury. In June 1986, claimant attempted to return to work to fill in for another secretary. After 15 minutes seated at a desk, her left leg was very painful. She left work after four hours due to the extreme pain. She has not worked since that time. At the time of arbitration, claimant still experienced pain on prolonged sitting and when bearing weight on her left foot. She can sit, stand and walk for only brief periods before experiencing a sharp, burning pain radiating up her left leg. She walks with a limp, and her left leg is weak.

Dr. Dwight Woiteshek, an orthopedic surgeon, examined claimant on July 1, 1985. He observed that she walked with a limp and complained of pain in her left foot, ankle and leg. The foot was swollen and discolored. He diagnosed a sprained ankle and prescribed a short leg walking cast from July 1 to July 23, 1985. She continued to experience pain and noted little improvement in her condition. A bone scan of the left foot was normal. On August 14, 1985, he released claimant to return to work.

Dr. Alvin Kanter, an orthopedic surgeon, examined claimant on September 17, 1985. Claimant walked with a limp and experienced pain radiating from the left foot up through her leg. He diagnosed an inversion injury to the left ankle, treated it with rest and pain medication, and released claimant for work on November 7, 1985. On November 26, 1985, Dr. Kanter again saw claimant. She had the same complaints of leg pain. He advised her to apply heat and seek a job. On February 27, 1986, claimant reported continued radiating pain, and Dr. Kanter diagnosed a residual sprain of the left ankle with some residual symptomatology and discharged her from his case.

Dr. Douglas Anderson, a neurosurgeon at Loyola, examined claimant on November 26, 1986. Dr. Anderson diagnosed L5 radiculopathy, dystrophic in nature, potentially relative reflex sympathetic dystrophy or traumatic radiculitis. The myelogram and CT scan were normal. The final diagnosis was traumatic radiculopathy. Following conservative treatment, Dr. Anderson suggested surgery to implant a spinal epidural stimulator to treat the intractable pain syndrome, but claimant declined this option.

Dr. Anderson testified, at a deposition that in his opinion the present condition of ill-being was caused by the June 26, 1985, work accident. At the time claimant twisted her left ankle and leg, she suffered a stretch injury of the peripheral nerves associated with the L5 dermatone and myotome in the lower left leg. Claimant had been disabled from the time of the accident on June 26,. 1985, and was still unable to return to her duties. Dr. Anderson had not released her to return to work. He was not very optimistic and described her prognosis as “guarded.”

Dr. Steven Mash examined claimant on April 9, 1986, at respondent’s request. Dr. Mash diagnosed a post-strain-sprained left foot. Carolyn Good and Robin Píese testified for claimant that they heard Dr. Mash refer claimant to Loyola Medical Center for treatment of a “serious problem.” Dr. Mash could not recall making the referral, but he did note that she was in need of further evaluation. Dr. Mash was not asked to express an opinion about causation. He agreed that twisting or stretching the ankle or foot could result in a leg injury, and that there was a “reasonable possibility” that claimant sustained such an injury. Dr. Mash did not examine claimant’s leg and restricted his examination to her foot and ankle.

On April 14, 1987, the arbitrator concluded that claimant failed to prove a causal connection and denied any compensation. On July 7, 1987, the Commission, with one member dissenting, adopted the findings of the arbitrator, merely commenting that they were supported by evidence in the record.

The trial court found that the Commission’s decision was not contrary to the manifest weight of the evidence and confirmed that decision.

Claimant contends that the Commission’s finding of no causal connection is against the manifest weight of the evidence. We agree.

Claimant bears the burden of proving that the injury was causally related to her employment. (Newgard v. Industrial Comm’n (1974), 58 Ill. 2d 164, 317 N.E.2d 524.) The Commission’s findings of fact will not be disturbed unless contrary to the manifest weight of the evidence. (Deal v. Industrial Comm’n (1976), 65 Ill. 2d 234, 357 N.E.2d 541.) However, where factual matters are susceptible of only one inference, it becomes a question of law, and this court is not bound by the Commission’s decision. (Butler Manufacturing Co. v. Industrial Comm’n (1981), 85 Ill. 2d 213, 422 N.E.2d 625.) Where claimant proves causation with unrebutted expert medical testimony which sufficiently supports a finding of causal connection, a reviewing court may set aside the Commission’s decision finding no causation. Dean v. Industrial Comm’n (1986), 143 Ill. App. 3d 339, 493 N.E.2d 16, cited in Busaytis v. Industrial Comm’n (1989), 178 Ill. App. 3d 943, 533 N.E.2d 1178.

A chain of events which establishes a prior condition of good health, an accident, and a subsequent condition of ill-being resulting in disability may be sufficient to prove a causal connection between the accident and the employee’s injury. International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908.

Dr. Anderson offered the only direct opinion on causal connection. He opined that claimant’s present condition of ill-being was caused by the work accident. He reviewed the early medical records, which included consistent complaints of pain in the left foot, ankle and leg. He concluded that when claimant twisted her left ankle and leg at work, she sustained a stretch injury of the peripheral nerves associated with the L5 dermatome and myotome in that leg. Dr. Anderson explained that nerve stretch injuries are commonly associated with radiculopathy and are well known to be associated with distal and far-reaching pain syndromes. Dr. Anderson based his decision on the nature and mechanism of the injury, the fact that the injury involved inversion of the left foot and leg; the onset, character and persistence of the pain as documented by the medical records; the lack of response to treatment and medication; the positive neurological findings; the EMG report and results; and the absence of any other nerve root compression in the spine, as shown by the normal myelogram and CT scan. The records of Drs. Kanter and Woiteshek contained complaints consistent with Dr. Anderson’s diagnosis. Thus, Dr. Anderson found claimant’s complaints could be taken “as evidence of a process that was less focal than ankle sprain and associated indeed with a traumatic nerve injury, stretch injury of the nerve that could involve the radical of the L5 nerve root.” Dr. Anderson opined that claimant has been disabled and unable to perform her job duties since the accident of June 26, 1985. She was currently unable to return to work. He had no opinion as to the permanency of her condition and found her prognosis was guarded.

Respondent offered no direct evidence rebutting claimant’s causal connection. The medical records of Drs. Woiteshek and Kanter show that claimant complained of pain in her left foot, ankle and leg. Drs. Woiteshek and Kanter offered no opinion regarding claimant’s leg, because they examined and X-rayed only her foot. Respondent relies on the fact that those doctors simply diagnosed a sprained ankle. A claimant should not be punished, however, because the initial treating physicians failed to correctly diagnose her condition.

Respondent offered the testimony of Dr. Mash. However, respondent failed to ask Dr. Mash whether or not he agreed with Dr. Anderson’s diagnosis and failed to ask his opinion regarding causation. On cross-examination, Dr. Mash agreed that a peripheral nerve injury can occur by twisting or stretching the ankle or foot. It was a “reasonable possibility” that claimant had sustained such an injury. Moreover, he admitted not performing tests above the left ankle and not examining the left leg at all. In addition, Dr. Mash deferred to Dr. Anderson’s opinion as to whether or not claimant was presently able to work.

The Commission expressly based its decision on the findings of the arbitrator. Those findings contain several significant factual errors. The arbitrator limits the injury “to [the] left foot,” while the medical records clearly include her repeated complaints of leg pain.

The arbitrator asserted that there was “conflicting medical testimony,” despite the fact that there was no conflict as to causal connection.

The arbitrator relied upon the evidence deposition of Dr. Woiteshek. Dr. Woiteshek never testified.

The arbitrator reported that Dr. Woiteshek released claimant for work after seeing her on April 9, 1986. This is eight months after claimant’s final visit to Dr. Woiteshek on August 14,1985.

The arbitrator apparently discounted or ignored Dr. Anderson’s final opinion and diagnosis. The arbitrator cited only Dr. Anderson’s preliminary diagnosis, mentioned at the beginning of his deposition. The arbitrator ignored Dr. Anderson’s final diagnosis, made after the diagnostic tests were performed, or traumatic radiculopathy caused by a stretching injury to the peripheral nerves in the left leg.

The arbitrator also relied upon the fact that the CT scan and myelogram were normal. Dr. Anderson, however, testified that normal findings were consistent with his diagnosis of a stretching peripheral nerve injury.

The arbitrator also relied on the fact that Dr. Kanter reported “nothing about any back injury or back symptoms.” This case has nothing to do with a back injury. The myelogram and CT scan simply ruled out low back pathology as a cause of claimant’s leg pain.

The arbitrator denied temporary total disability, even for the period during which Dr. Kanter advised her not to work and her left leg was in a cast.

We conclude that the Commission’s determination that claimant failed to prove a causal connection between her work injury and her present condition was erroneous as a matter of law. See Busaytis v. Industrial Comm’n (1989), 178 Ill. App. 3d 943, 533 N.E.2d 1178.

Without discussion, we reject as being without merit claimant’s contention that she is entitled to penalties under sections 19(k), 19(1) and 16 of the Act.

The judgment of the circuit court of Will County confirming the Commission’s determination that claimant’s condition was not caused by her work injury is reversed. The cause is remanded for further proceedings consistent with the holdings contained herein.

Judgment reversed and remanded.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
    HENNEPIN DRAINAGE & LEVEE DISTRICT, Plaintiff, v. W.H. KLINGNER et al., Defendants and Third-Party Plaintiffs-Appellants (Cascade Pump Company, Third-Party Defendant-Appellee).
    Third District
    No. 3-88-0768
    Opinion filed August 29, 1989.
    Gary D. Nelson and Karen L. Kendall, both of Heyl, Royster, Voelker & Allen, of Peoria (Stephen J. Heine, of counsel), for appellants.
    Michael T. Reagan, of Ottawa, for appellee.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of

the court:

The plaintiff, Hennepin Drainage and Levee District, filed a breach of contract suit against a certain defendant engineering firm, seeking to recover damages for an alleged failure to perform professional engineering services in a “good and workmanlike manner.” The plaintiff had entered into a contract with the defendant to prepare construction plans for a new pumping plant to discharge waters from the land of the district. The plaintiff alleged that the defendant recommended the purchase of a pump which was incompatible with the anticipated range of hydraulic field conditions in which it was to operate. The defendant filed a third-party complaint against the third-party defendant, Cascade Pump Company (Cascade), seeking contribution under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). The defendant alleged that Cascade, as the manufacturer of the subject pump, was liable for its performance. The trial court dismissed the third-party complaint upon the basis that a defendant sued in contract cannot seek contribution.

The defendant subsequently filed a third-party complaint against Cascade based upon implied indemnity. The trial court dismissed the indemnity complaint and made its orders of dismissal final and appealable.

The issue before this court is whether the defendant may seek contribution against the third-party defendant, or, alternatively, whether it may proceed upon a theory of implied indemnity.

Contribution is a statutory remedy which involves a sharing of payment of damage awards and is available to all parties who are subject to liability in tort arising out of the same injury.

In the instant case, the plaintiff’s suit states a cause of action for breach of contract. The defendant contends that the basis of its liability lies in tort; consequently, the fact that the complaint is brought upon a contractual theory is not determinative of the right to contribution.

After reviewing the cited cases and the arguments advanced by the defendant, we determine that the Illinois Supreme Court’s decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, and its progeny, is controlling.

Moorman was a products liability case wherein the court was asked to decide whether a plaintiff could recover damages for the cost of repairs and the loss of a steel grain storage tank under several tort theories. The court held that the plaintiff could not maintain an action in tort, either in negligence or in strict liability, to recover solely economic losses.

In the related case of Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324, the court broadened the rule in Moorman beyond products liability actions, when it applied its principle and reasoning to a claim against a builder of a house whose negligent construction caused the chimney and adjoining brick wall to pull slowly away from the rest of the structure, resulting in cracks and water leakage.

Subsequent to these opinions, this court, in Ferentchak v. Village of Frankfort (1984), 121 Ill. App. 3d 599, 459 N.E.2d 1085, made an application of the Moorman rule in a case involving the negligent design of a water drainage system by a professional civil engineer hired by a developer to design and supervise the construction of the system. We held that recovery in tort was only allowable when the plaintiff had no remedy under contract or warranty theories of recovery.

In light of these precedents, we determine that the damages suffered by the plaintiff were purely economic in nature and are recoverable only upon a contract theory. Pursuant thereto, a third-party complaint for contribution is precluded.

We also believe that the trial court’s dismissal of the third-party complaint seeking implied indemnity was substantially correct.

Indemnity is a common law doctrine providing for the complete shifting of liability on a showing that there was a pretort relationship between the guilty parties and a qualitative distinction between their conduct. The lack of a contract between the defendant and Cascade precludes an indemnity right.

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

Affirmed.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL REGAINS, Defendant-Appellant.
    Third District
    No. 3—88—0530
    Opinion filed August 31, 1989.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Rita Kennedy Mertel, of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The State charged Paul Regains in the circuit court of Will County with an amended information containing two counts of aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, pars. 11 — 4.1(b)(1)(A), (b)(1)(B)) and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(b)(1)). The State distinguished the categories of charges to account for a change in the law effective July 1, 1984 (see Ill Ann. Stat., ch. 38, par. 12 — 12, Historical Note, at 269 (Smith-Hurd Supp. 1989)), and it distinguished the counts in each category to accommodate its charges that Regains placed his penis in both the mouth and the vagina of the victim.

After Regains’ trial, the jury returned general verdicts, indicating that Regains was guilty of aggravated indecent liberties with a child, aggravated criminal sexual assault, and aggravated criminal sexual abuse. Having dismissed the verdict pertaining to aggravated criminal sexual abuse as a lesser included offense of aggravated criminal sexual assault, the circuit court sentenced Regains to concurrent terms of 12 years’ imprisonment for each of the four counts which the State charged in the information. In this appeal Regains asserts that reversible error occurred in his trial with regard to the verdict forms, the admission of certain evidence, the jury instructions, and the prosecutor’s closing argument. We affirm.

Regains argues first that he was deprived of his right to a unanimous verdict. Regains emphasizes that the verdict forms indicating the jury’s finding that he was guilty of aggravated indecent liberties with a child and aggravated criminal sexual assault fail to differentiate between the charges that he put his penis in the mouth and in the vagina of the victim. He asserts that the 12 signatures could have resulted from some jurors believing that he was guilty of vaginal but not oral contact and the other jurors believing that he was guilty of oral but not vaginal contact — with the ultimate result that he was not found unanimously guilty of any of the charges. We note, however, that Regains failed to object to the general verdict forms at trial, and he failed to include the issue in his post-trial motion. Moreover, in attempting to provide the jury with the alternative of a lesser included offense of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 15), Regains also tendered general verdict forms, apparently affirmatively adopting the character of the forms which had been tendered by the State. Under these circumstances, we must conclude that Regains effectively waived any argument regarding the general nature of the verdict forms. People v. Richardson (1988), 123 Ill. 2d 322, 344-45, 528 N.E.2d 612, 620.

Regains argues that we should nevertheless consider the merits of his argument pursuant to Supreme Court Rule 451(c), which provides that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (107 Ill. 2d R. 451(c).) However, in view of the record in this case and particularly the jury instructions which accompanied the verdict forms and which thoroughly and precisely explained the nature of the four charges brought against the defendant, we conclude that no “substantial defect” occurred with regard to the general verdict forms such that the “interests of justice” require any relaxation of the waiver rule. Richardson, 123 Ill. 2d at 345, 528 N.E.2d at 620.

Regains argues that he was denied his right to a unanimous verdict also because of the probability that the jury’s verdict was based on uncharged overt acts which constituted the offenses. Regains emphasizes that the State introduced the testimony of the victim and a medical expert which tended to show that Regains also committed anal intercourse with the victim and that other testimony suggested that Regains committed sexual acts with the family cat and dog. Premising his argument is Regains’ assertion that the overt acts charged in the four counts were not adequately specified to the jury. We have already concluded, however, that the jury instructions more than adequately specified the charged offenses. Moreover, the repeated references to “person” and to the name of the victim in the jury instructions deny even the possibility that the jury considered evidence of Regains’ sexual relations with animals as constituting the charged offenses. Additionally, we note that the terms “deviate sexual conduct,” “sexual intercourse” and “sexual penetration,” as defined in the jury instructions, do not provide for contact or penetration involving either the anus of the victim or any part of an animal. We conclude, therefore, that Regains’ argument is without merit.

Regains further argues that he was denied a fair trial because of the introduction of evidence of the crimes of anal intercourse and sexual acts with a dog and cat. Initially, we observe that some of the evidence of other crimes, namely that pertaining to Regains’ sexual activity with a dog and cat, was first introduced by the defendant. We will not, therefore, entertain his complaint on appeal that its admission was improper. People v. Payne (1983), 98 Ill. 2d 45, 50, 456 N.E.2d 44, 46.

Second, we agree with the circuit court that the evidence of Regains’ anal intercourse with the child was properly admissible as part of the same plan, scheme or design. The victim testified that on the mornings when Regains was home, approximately three mornings per week, after the victim’s mother would leave for work and before the victim would leave for school, Regains would call the victim into his bedroom, tell her to undress or undress her and then engage with her in two of the three acts of oral sex, vaginal intercourse and anal intercourse. When the child would complain that it hurt, Regains would tell her to be quiet or that it would get better. If she refused to take off her clothes, Regains would promise her money or a toy. Regains also told her that if she ever told her mother, her mother would hate her and blame the incidents on her. We conclude that the evidence thus demonstrates a pattern and similarity of sexual activity sufficient to admit the evidence of anal intercourse on the basis that it was part of the same plan, scheme or design. (People v. Partin (1987), 156 Ill. App. 3d 365, 370, 509 N.E.2d 662, 665-66.) The circuit court did not err, therefore, in admitting it as such.

Regains argues that, even were the evidence admissible, the jury instructions on the admissibility of the evidence were erroneous because they indicate that the evidence was admissible on the issue of defendant’s identification and knowledge — a basis different from that ruled upon by the circuit court on the motion in limine. However, because he failed to raise this issue at any point in the proceedings below, we conclude that Regains has waived the argument for purposes of our review. Richardson, 123 Ill. 2d at 344-45, 528 N.E.2d at 620.

Finally, we address the issues raised concerning a tape recording wherein Regains admitted to a police officer over the telephone that he had committed oral sex with the victim. Regains argues, first, that his conversation with the police officer was inadmissible as having been conducted in violation of his Miranda rights. We disagree.

Miranda warnings must be given to any defendant who is subject to custodial interrogation. (In re N.E.R. (1987), 159 Ill. App. 3d 320, 324, 512 N.E.2d 132, 134; see also R. Ruebner, Illinois Criminal Procedure 77-81 (1987).) Here, the defendant was neither in custody nor subject to interrogation. Regains called the officer from a phone booth on a street corner in downtown Chicago. He was not under arrest. There is no indication that his freedom was limited in any significant way. There was, therefore, no violation of Regains’ Miranda rights.

Regains also asserts that the recording of the conversation was inadmissible as having been recorded in violation of his privacy rights as protected by the eavesdropping statute (Ill. Rev. Stat. 1983, ch. 38, par. 14 — 1 et seq.) and the United States and Illinois Constitutions. Again, we disagree. The eavesdropping statute is aimed at the conduct of “listening in secret to what is said in private.” (People v. Beardsley (1986), 115 Ill. 2d 47, 58, 503 N.E.2d 346, 352.) In this case Regains called and spoke to a police officer at the police station. He could not reasonably expect that his voluntary confession to having committed oral sex with a child would remain private if told to a police officer. Moreover, since the conversation was recorded as a matter of routine procedure applicable to all telephone calls, the police officer could not be charged with having acted surreptitiously with regard to the conversation with the defendant. We conclude, therefore, that Regains’ conversation with Officer Price was not recorded in violation of the defendant’s privacy rights.

®8 Finally, Regains argues that reversible error occurred when the prosecutor played a portion of the recorded conversation as part of his closing argument. Regains did not object to the prosecutor’s actions at trial, however, nor did he raise the issue of error in the closing argument in his post-trial motion. We conclude, therefore, that Regains waived any error in the closing argument. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093.) Moreover, considering that the jury heard the tape in its entirety during the evidentiary portion of the trial, any error that may have occurred was not such as to deny Regains a fair trial. Lucas, 88 Ill. 2d at 252, 430 N.E.2d at 1094.

For these reasons we affirm the judgment of the circuit court of Will County.

Affirmed.

WOMBACHER, P.J., and HEIPLE, J, concur.


author: JUSTICE HEIPLE

text:
    KERRY L. ADOLPHSON, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3-88-0810
    Opinion filed August 29, 1989.

      Jack L. Brooks, of Bozeman, Neighbour, Patton & Noe, of Moline (Robert J. Noe, of counsel), for appellant.
    Robert T. Park, of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Kerry L. Adolphson, plaintiff, brought this action for declaratory judgment against his automobile insurance carrier, defendant Country Mutual Insurance Company (Country Mutual). Adolphson alleged that on November 10, 1986, while Country Mutual’s policy was in force, he was injured in an automobile accident caused by the negligent driving of Connie Smith. As a result of the accident, Adolphson became legally entitled to recover damages for personal injury from Smith of approximately $113,200. Adolphson actually recovered $30,000, the limits of Smith’s liability coverage, from Smith’s insurer. Country Mutual then paid Adolphson $56,888.57 on the underinsured motorist coverage provided in its policy. This amount equalled the $100,000 limit in Country Mutual’s underinsured motorist coverage, minus the amount recovered from Smith’s insurer ($30,000), and minus the amount Country Mutual paid to the plaintiff for medical expenses under its medical payments coverage ($13,111.43). The plaintiff subsequently filed suit contending that Country Mutual was not entitled, pursuant to the Illinois underinsured motorist act, to reduce its under-insured motorist liability by the amount of its payments under the policy’s medical payments provision. The defendant filed a motion to dismiss, which was granted. After plaintiff’s motion for reconsideration was denied, he filed the instant appeal. We affirm. For clarity’s sake, the reader is reminded that this case deals with an imderinsured rather than an ^-reinsured motorist. These are separate and distinctive words of art.

The underinsured motorist provision is found at section 143a — 2(3) of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a— 2(3)) and provides:

“(3) Required offer of underinsured motorist coverage. Until July 1,. 1983, any offer made under subsection (1) of this Section shall also include an offer of underinsured motorist coverage. For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” (Emphasis added.)

The sole issue presented on appeal is to determine whether the statute permits an insurer to reduce its underinsured motorist liability by amounts paid under other coverages in its policy, where the policy unambiguously permits such reductions. Payments made by defendant were, as plaintiff concedes, entirely consistent with the unambiguous language of the policy which, in relevant part, provides:

“1. Limits of Liability. The limit of liability shown on the declarations page under ‘Medical Payments, each person,’ is the maximum we will pay for each person sustaining bodily injury or death in any one accident ***. Expenses payable under Medical Payments, Coverage C, will be reduced, or if applicable will reduce any amounts owned or paid under the Liability, Uninsured Motorists, or Underinsured Motorists coverage of this policy. No payment will be made under Medical Payments, Coverage C, unless the injured person, or that person’s legal representative agrees in writing that any payment will be applied in reduction of any amounts payable under Liability, Coverage A, Uninsured Motorists, Coverage U, or Underinsured Motorists coverage of this policy ***.”

Plaintiff contends that this policy language is inconsistent with the statute. We agree with plaintiff that, if the policy provision were inconsistent with the Insurance Code, the statutory provision would control. (Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851.) Plaintiff invokes the rule of statutory construction, expressio unius est exclusio alterius, i.e., expression of one thing is the exclusion of another. Since the statute reduces defendant’s liability by the amount actually paid by the underinsured motorist or her insurer, and mentions no other reductions, plaintiff contends no other reductions of underinsured liability are permitted. It would follow that policy provisions, such as in the instant case, permitting reductions of liability on the underinsured coverage for payments under the medical payments coverage, would be void.

We do not agree with the defendant’s interpretation of the under-insured motorist statute. Section 143a — 2(3) does not enumerate all available credits which may be claimed by the insurer against its underinsured motorist liability. Instead, the statute sets forth the formula by which the insurer’s maximum liability for underinsured motorist coverage may be determined. As applied to the instant case, the formula would be as follows:

Limits of underinsured motorists coverage: $100,000
Less amount actually recovered from other vehicles’s coverage 30,000
Equals limits of liability $ 70,000

“Limits” in this context refers to the highest amount which the insurer providing underinsured motorist coverage must pay. The statute does not set a minimum, or floor, but rather a maximum, or ceiling. Nothing in the statute prevents the insurer from reducing its liability by amounts paid under other coverages in the same policy. The policy in the instant case unambiguously permits a reduction in underinsured motorist liability.

Plaintiff relies on Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330. Glidden deals with an uninsured rather than an underinsured motorist. Glidden decided that the insured could recover from one insurer under the uninsured motorist provisions of three separate policies, for which three separate premiums were paid. Defendant had contended that its obligation under each of the three separate policies would be prorated to take into account the money paid by the other two. Thus, where the uninsured motorist coverage was $10,000 per policy, each policy would pay $3,333.33, to a total of $10,000. Plaintiff contended that he should be allowed to recover the full amount under each policy, i.e., a total of $30,000. Our supreme court sustained this argument, holding that an ambiguity existed with respect to the “other insurance” clause. That ambiguity was resolved in favor of the insured so as not to include other policies owned by insured with the same insurer, so long as the multiple recovery did not exceed the total damages sustained. Plaintiff therefore obtained a total of $30,000 from the uninsured motorist coverage in three separate policies.

Glidden is distinguishable from the instant case for several reasons. First, Glidden involved the stacking of multiple policies with the same coverage. Second, there existed ambiguity in the extent of coverage and exclusions in the policies in Glidden. Third, plaintiff had paid separate premiums in each of his three policies for the uninsured motorist protection. Only one policy is involved in the instant case. One premium was paid for the coverage which was clearly defined in the policy.

Plaintiff also invokes language in Glidden speaking to medical payment setoffs against uninsured motorist coverage. Such setoffs were not permitted in Glidden because compensation to the injured party could be less than that paid if the uninsured motorist had been insured in compliance with the financial responsibility law. However, such a consideration does not obtain for underinsured motorist coverage. Such coverage must be in excess of the minimum required under the financial responsibility law. (Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, rev’d on other grounds (1985), 108 Ill. 2d 243.) Thus, compensation provided in the underinsured motorist coverage will always exceed that payable when the other motorist carries the minimum insurance required by statute. To the extent that Glidden may articulate a public policy applicable to underinsured motorist coverage, that policy is satisfied in underinsured coverage issued in Illinois. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420.

Because our construction of the term “limits of liability” in the underinsured motorist provision of the statute, we find that the cases plaintiff relies on construing the uninsured motorist provision to be inapplicable.

Accordingly, we affirm the order of the circuit court of Rock Island County dismissing the complaint.

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.


author: JUSTICE LINDBERG

text:
      In re MARRIAGE OF BOBETTE TZOUMAS, n/k/a Bobette Psarro, Petitioner-Appellee, and HARRY TZOUMAS, Respondent-Appellant.
    Second District
    No. 2—88—0590
    Opinion filed August 31, 1989.

      Leon I. Finkel, of Kalcheim, Schatz & Berger, of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Harry Tzoumas, appeals from numerous orders of the circuit court of Du Page County denying his petition pursuant to section 2 — 1401 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate a judgment for dissolution of marriage incorporating a marital settlement agreement and the child support provisions contained therein. Petitioner, Bobette Tzoumas, n/k/a Bobette Psarro, has not filed a brief on appeal. We proceed to address the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493 (judgment of trial court should not be reversed pro forma for appellee’s failure to file brief).

We issued an opinion in this case on March 20, 1989. Respondent filed a petition for rehearing and a motion to supplement the record on appeal (107 Ill. 2d R. 329). We granted respondent leave to obtain trial court certification of the supplemental record on appeal. Respondent has obtained the trial court’s certification of the supplemental record. We deny the petition for rehearing and withdraw the opinion filed in this case on March 20, 1989, and order the instant opinion to be filed.

The parties were married on October 17, 1971. On January 11, 1984, Bobette instituted dissolution proceedings against Harry. At this time, the parties had no children, nor was Bobette pregnant. The parties reconciled. On February 5, 1985, Bobette gave birth to a child, Nick Tzoumas. The parties’ efforts at reconciliation failed, and on January 13, 1986, the proceeding for dissolution was reinstated. On August 25, 1986, in the circuit court of Du Page County a judgment for dissolution of marriage was entered incorporating a settlement agreement which included issues of child support for the one child born of the parties’ marriage, Nick.

On June 10, 1987, Harry filed a motion entitled “Emergency Petition for Rule to Show Cause and Other Relief.” Count I of this petition involved a dispute over visitation with Nick and is not an issue on appeal. Count II of Harry’s petition, entitled, “Petition Pursuant to Section 2 — 1401 of the Illinois Code of Civil Procedure,” alleged in substance that on December 13, 1986, Harry became aware of facts that led him to question whether he was, in fact, the biological father of Nick; that such facts were fraudulently concealed by Bobette; and that had he known such facts Harry would not have entered the settlement agreement contained in the court’s August 25, 1986, judgment of dissolution. Harry requested that the trial court order Bobette and Nick to submit to blood tests to determine parentage and vacate the August 25,1986, judgment for dissolution.

Bobette did not respond to Harry’s petition. On September 10, 1987, the trial court entered an order denying Harry’s request for blood tests which Harry sought to enable him to establish his right to relief under his section 2 — 1401 petition. The order of September 10, 1987, did not dismiss Harry’s petition to vacate the judgment. On March 16, 1988, Harry again filed a motion seeking a trial court order for blood tests to enable Harry to establish whether or not he was the father of Nick. Harry relied upon Supreme Court Rule 215(a) (107 Ill. 2d R. 215(a)), authorizing certain medical exams as part of discovery, as well as section 11 of the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2511), concerning blood tests in actions involving questions of paternity. Bobette failed to respond. Again, the trial court denied Harry’s motion. On April 15, 1988, Harry filed a motion to reconsider the March 16, 1988, order of the court. This motion was denied on May 18, 1988. A notice of appeal was filed June 16, 1988, and an amended notice of appeal was filed July 15, 1988, seeking review of all the trial court orders denying Harry’s attempts to obtain blood tests and to vacate the August 25, 1986, judgment for dissolution which found Nick to be a child born of the parties’ marriage.

On appeal, respondent argues the trial court abused its discretion in refusing to grant the relief requested pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Initially, we note that respondent has failed to comply with the recent amendment to Supreme Court Rule 341, effective August 1, 1988, which requires a brief statement or explanation of the jurisdictional

basis for appellate review of the trial court’s order. (122 Ill. 2d R. 341(e)(4)(ii).) Additionally, an appellate court has a duty to consider its own jurisdiction and to dismiss an appeal if it determines that appellate jurisdiction is lacking. Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, 529 N.E.2d 718.

Supreme Court Rule 304(b)(3) (107 Ill. 2d R. 304(b)(3)) makes appealable an order granting or denying relief requested pursuant to section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)) requires that a notice of appeal be filed within 30 days of an order granting or denying relief pursuant to section 2 — 1401, unless a motion to reconsider or vacate the grant or denial of section 2 — 1401 relief is filed within 30 days of the court’s ruling on the section 2 — 1401 petition. (Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358.) Where such a motion is filed within 30 days of the trial court’s judgment concerning relief requested pursuant to section 2 — 1401, such motion is a post-trial motion directed against the judgment and will extend the time to file a notice of appeal until 30 days after the order disposing of the motion is entered. (Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 431 N.E.2d 358; Tucker v. McNulty (1988), 173 Ill. App. 3d 722, 527 N.E.2d 953; 107 Ill. 2d R. 303(a).) In the instant case, Harry’s section 2 — 1401 petition was dismissed on March 16, 1988. A timely motion to reconsider was filed within 30 days, on April 15, 1988. This motion was denied on May 18, 1988, and reiterated the dismissal of Harry’s petition with prejudice. Within 30 days of denial of Harry’s motion to reconsider dismissal, a timely notice of appeal was filed on June 16, 1988. (107 Ill. 2d R. 303(a).) We allowed respondent to file an amended notice of appeal on July 15, 1988. Having found proper appellate jurisdiction, we proceed to address the merits of respondent’s contention that the trial court erred in dismissing his section 2 — 1401 petition and in refusing his requests for blood tests to determine parentage.

The function of a section 2 — 1401 petition to vacate judgment is to bring to the trial court’s attention facts or matters which, had they been known to the trial court at the time judgment was entered, would have prevented the trial court’s entry of the judgment. (Zimmerman v. Village of Skokie (1988), 174 Ill. App. 3d 1001, 529 N.E.2d 599.)

“To prevail on a section 2 — 1401 petition, a plaintiff must prove first that if the grounds for relief had been known at trial, it would have prevented the entry of judgment against the petitioner, and second, that the failure to discover and present the ground for relief was not the result of the petitioner’s own lack of diligence.” (Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 497, 504 N.E.2d 893, 895.)

Although a section 2 — 1401 petition is filed in the same action in which the judgment it seeks to have vacated was entered, the petition is not a continuation of the prior action but a new action subject to the usual rules of civil practice and is to be considered in the same manner as a civil complaint. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.) Generally, a party will prevail on a section 2 — 1401 petition to vacate a judgment where he shows by a preponderance of the evidence: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting that defense or claim in the original action; (3) but through no fault or lack of diligence on petitioner’s part, an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment was entered; and (4) due diligence in filing the petition for section 2 — 1401 relief. In re Marriage of Duffey (1988), 168 Ill. App. 3d 1086, 523 N.E.2d 371.

In the instant case, the trial court’s dismissal of Harry’s section 2 — 1401 petition, without any evidentiary hearing or response by Bobette, is tantamount to a dismissal of Harry’s complaint for failing to state a cause of action as a matter of law. (Cf. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253 (legal sufficiency of allegations contained in a section 2 — 1401 petition to vacate a judgment may be tested by a motion to dismiss which admits, as true, all well-pleaded factual allegations of the petition).) Harry’s petition alleged the existence of a marital settlement agreement and judgment of dissolution based thereon, entered by the trial court in August 1986 and that as part of the settlement agreement and on other numerous occasions, Bobette, at the time of entry of judgment of dissolution, represented to Harry that Harry was the biological father of Nick. Harry stated that he reasonably relied on Bobette’s representations concerning the parentage of Nick and based thereon entered into the settlement agreement which obligated him to provide support to Nick, which obligations were incorporated into the judgment of dissolution. Harry further alleged that, at the time of judgment, Bobette knew Harry was not the biological father of Nick and that she fraudulently concealed this fact from Harry. Harry alleged that had he known that he was not the biological father of Nick, he would not have entered the settlement agreement, which was incorporated into the judgment of dissolution, which obligated him to provide support to the minor child, Nick. Harry stated that he had first become aware of the possibility that he was not the biological father of Nick on December 13, 1986. In support of his petition, Harry also filed with his petition his affidavit in support of his request for relief pursuant to section 2 — 1401 of the Code. Harry’s affidavit stated, among other facts, that Bobette repeatedly told him between December 1986 and February 1987 that Harry was not the biological father of Nick, but that Nick was fathered by another individual, George Doe. Since the entry of the judgment of dissolution, various friends and relatives of Harry have observed Bobette and Nick in the company of the putative father, George Doe, and various friends and relatives have told Harry that Nick bares a striking resemblance to the putative father, George Doe.

Taking the well-pleaded allegations of fact and reasonable inference therefrom, we find that the allegations of fact, if ultimately proved by Harry, would entitle Harry to relief pursuant to section 2— 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). Harry’s allegations of fact concerning Bobette’s knowledge of Nick’s true parentage, and Harry’s reasonable reliance on Bobette’s representations that a child born during Harry and Bobette’s marriage was the biological son of Harry, would support a finding that Harry was not at fault for failing to discover and present this claim in the prior proceeding. (See Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 504 N.E.2d 893 (whether a party against whom section 2 — 1401 relief is sought fraudulently or intentionally concealed documents or information in prior actions is not a separate requirement of a petition under section 2 — 1401, but is part of the analysis in determining whether petitioner exercised due diligence in discovering and presenting grounds for relief under section 2 — 1401).) Nor, can we say that as a matter of law Harry’s filing of his petition six months after Bobette first told him he was not the biological father of Nick establishes a lack of diligence in presenting his petition for relief under section 2 — 1401. (See Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381 (petition to vacate is addressed to equitable powers of court, and a judgment may be vacated even though the requirement of due diligence has not been met). Compare Bruni v. Department of Registration & Education (1972), 8 Ill. App. 3d 321, 324, 290 N.E.2d 295 (trial court did not abuse discretion in allowing petition to vacate dismissal filed six months after party learned of order of dismissal); Reuben H. Donnelly Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 730, 398 N.E.2d 972 (trial court did not abuse discretion in granting petition to vacate although filed one year after petitioner knew of judgment).) Finally, had the trial court known that Harry was not the biological father of Nick, a fact we reiterate has not yet been proved, the trial court would not have entered the prior judgment in that the trial court would not have been authorized to order Harry, as the husband of Bobette, to support a child of Bobette which the court knew was not the biological child of Harry. (See In re Marriage of Watling (1989), 183 Ill. App. 3d 18, 22, 538 N.E.2d 1274 (trial court lacked authority to order husband to pay temporary child support to wife for a child found not to be the biological child of the husband).) Since the factual allegations of Harry’s petition, taken as true, would support a finding of diligence and of a meritorious claim or defense, the trial court erred in dismissing Harry’s petition as legally insufficient. See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.

Next, we address respondent’s contention that the trial court abused its discretion in refusing to grant respondent’s motion for blood tests and his request that we direct the trial court to order blood tests in order to establish the existence or nonexistence of a parent-child relationship as part of Harry’s attempts to obtain relief under his section 2 — 1401 petition. Harry argues that since Bobette refused to respond to the allegations contained in Harry’s petition, she admitted all well-pleaded facts of Harry’s section 2 — 1401 petition, and, therefore, Harry was entitled to an order of the trial court for blood tests to determine whether Harry was the biological father of Nick.

A section 2 — 1401 petition to vacate a judgment is addressed to the equitable powers of the court. (Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 350 N.E.2d 97.) The section 2 — 1401 procedure has been provided as a means to allow trial courts to exercise their equitable powers to grant relief and prevent injustice. (Malek v. Lederle Laboratories (1987), 152 Ill. App. 3d 493, 504 N.E.2d 893.) Harry is correct in his assertion that where a party fails to respond or otherwise answer to a petitioner’s allegations of fact in a petition for relief under section 2 — 1401, such a failure admits as true those facts well pleaded. Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 350 N.E.2d 97.

Further, Harry was also correct in seeking a blood test at that point of the trial court proceedings in that, even though Bobette’s failure to respond admitted the well-pleaded facts of Harry’s petition, such facts do not establish by a preponderance of the evidence Harry’s right to relief under section 2 — 1401. Further, the key factual question inherent in Harry’s section 2 — 1401 petition involves the issue of Nick’s parentage. Section 9(a) of the Parentage Act provides, in relevant part, “[i]n any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.” (Ill. Rev. Stat. 1987, ch. 40, par. 2509(a).) Therefore, we must look to the Parentage Act to see how its provisions affect Harry’s attempts to vacate a prior judgment of dissolution and its related support provisions under section 2 — 1401 of the Code where Harry’s section 2— 1401 petition raises the issue of Nick’s parentage. Cf. In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 417, 531 N.E.2d 97 (section 9(a) of Parentage Act required application of Parentage Act’s statute of limitations to wife’s attempts to raise parentage issue in custody dispute which arose during dissolution of marriage proceedings).

Section 5 of the Parentage Act creates a presumption that a man is the natural father of a child if the child’s natural mother is married to the man at the time the child is born. (Ill. Rev. Stat. 1987, ch. 40, par. 2505(a)(1).) This presumption can be rebutted only by clear and convincing evidence. (Ill. Rev. Stat. 1987, ch. 40, par. 2505(b).) Therefore, before Harry can obtain the relief he seeks, as part of his proof under his section 2 — 1401 petition, Harry must rebut by clear and convincing evidence the presumption that he is the natural father of Nick. Section 11 of the Parentage Act authorizes and sets guidelines for the taking of blood tests, interpretation by experts of the test results, and use of test results and expert opinions in court proceedings where parentage is at issue. (Ill. Rev. Stat. 1987, ch. 40, par. 2511.) Where the test results and the experts’ opinions support a trial court’s finding excluding paternity, the presumption of section 5 of the Parentage Act (Ill. Rev. Stat. 1987, ch. 40, par. 2505) is rebutted. (Ill. Rev. Stat. 1987, ch. 40, par. 2511(f).) Since Harry's section 2 — 1401 petition is to be treated as any other civil complaint (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253), orders for blood tests, like any other orders of discovery, to the extent necessary and otherwise appropriate to the issues relevant to a petition for relief under section 2 — 1401 are properly left to the trial court’s discretion. (People v. B.R. MacKay & Sons, Inc. (1986), 141 Ill. App. 3d 137, 490 N.E.2d 74; Lubbers v. Norfolk & Western Ry. Co. (1986), 147 Ill. App. 3d 501, 498 N.E.2d 357; cf Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381 (where facts sufficient to support relief pursuant to section 2 — 1401 petition are disputed, a full and fair evidentiary hearing is required to be held).) The trial court has the discretion to order blood tests under Supreme Court Rule 215(a) (107 Ill. 2d R. 215(a)), as part of discovery, where parentage is at issue. (People ex rel. Aldworth v. Dutkanych (1986), 112 Ill. 2d 505, 493 N.E.2d 1037.) If the allegations of Harry’s petition are found to be true, it would be an abuse of discretion to deny a request for blood tests to aid in Harry’s attempts to establish whether he is the natural father of Nick and whether he should be granted relief as requested in his section 2 — 1401 petition. (See People v. B.R. MacKay & Sons, Inc. (1986), 141 Ill. App. 3d 137, 490 N.E.2d 74 (where petitioner makes prima facie showing that judgment was fraudulently obtained, petitioner is entitled to limited discovery in connection with its petition to vacate the judgment).) However, we decline to direct the trial court to order blood tests at this stage.

If the allegations of Harry’s petition are true, and the blood test results establish that Harry is not the biological father of Nick, Nick stands to lose the financial support of Harry. The outcome of Harry’s section 2 — 1401 petition will directly affect interests of the minor child, Nick, in visitation with and financial support from Harry. (See Ill. Rev. Stat. 1987, ch. 40, par. 2501.1 (“Illinois recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act”).) Where a trial court has notice that a minor’s interests are not properly represented, it is the duty of the trial court to appoint a guardian ad litem to safeguard and protect those interests. (McDonald v. McGowan (1987), 163 Ill. App. 3d 697, 516 N.E.2d 934.) In light of the failure of the mother, Bobette, to file responsive pleadings in the trial court or a responsive brief in this court, serious questions arise as to whether Nick’s interests may require protection in the trial court proceedings by appointment of a guardian ad litem. See Majidi v. Palmer (1988), 175 Ill. App. 3d 679, 685, 530 N.E.2d 66 (where putative father filed petition seeking to establish paternity and visitation rights and mother moved to dismiss, mother and minor child’s interests were in potential conflict, and court was required to appoint guardian ad litem); Miller v. Miller (1987), 163 Ill. App. 3d 602, 609, 516 N.E.2d 837 (conflict of interests between minor and minor’s parents in divorce proceedings as to matters of custody, visitation and support may require appointment of guardian ad litem to protect minor’s interests).

Therefore, we reverse the trial court’s dismissal of respondent’s section 2 — 1401 petition and remand for farther proceedings. On remand, the trial court shall appoint a guardian ad litem for the minor, Nick. The guardian ad litem will represent the minor at a hearing in the trial court to determine, in light of the failure of the mother, Bobette, to respond or otherwise contest Harry’s section 2— 1401 petition, whether the minor’s interests are being adequately protected at the section 2 — 1401 proceedings to vacate the judgment of dissolution. If the trial court determines that the minor’s interests have not been adequately represented in the section 2 — 1401 proceedings, it shall allow the guardian ad litem to file responsive pleadings and proceed with a determination of Harry’s section 2 — 1401 petition anew. If the trial court determines that the minor’s interests have been adequately represented, then the trial court shall proceed to order blood tests and proceed to a determination of whether to grant the relief requested in Harry’s section 2 — 1401 petition.

Reversed and remanded with directions.

REINHARD and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES SAUNDERS, Defendant-Appellant.
    Second District
    No. 2—87—0728
    Opinion filed August 31, 1989.
    Rehearing denied October 6, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, James Saunders, appeals from an order of the circuit court of Winnebago County which dismissed his amended petition for post-conviction relief: On appeal, defendant contends that the trial court erred in not holding an evidentiary hearing on his petition given that he alleged that (1) a recent evidentiary discovery showed that the State used unreliable scientific evidence at his trial; and (2) the absence of black persons from the jury venire deprived him of his right to be tried by a jury selected from a fair cross-section of the community. We affirm.

In January 1982, defendant was charged with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11), rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1), and deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 3). Following a jury trial, defendant was found guilty of all three offenses and was sentenced to concurrent terms of 40 years’ imprisonment. Defendant took a direct appeal to this court (People v. Saunders (1984), 122 Ill. App. 3d 922), which affirmed his convictions.

On April 3, 1987, defendant filed an amended pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). In the petition, defendant alleged that he was denied effective assistance of counsel, both at trial and on direct appeal, that he was not proved guilty beyond a reasonable doubt, that the State used unreliable scientific evidence at his trial, and that he was denied his right to a jury representing a fair cross-section of the community. On June 5, 1987, the State filed a motion to dismiss defendant’s petition, alleging that defendant’s allegations in the petition were either vague or waived. On July 24, 1987, the trial court granted the State’s motion to dismiss defendant’s petition. Defendant filed a timely notice of appeal.

The evidence adduced at defendant’s trial showed that on the morning of January 12, 1982, defendant knocked on the victim’s door and showed the victim a postcard after she opened the door. Defendant asked the victim if the card was hers, but before she could answer, defendant struck her in the face with his fist. Defendant entered the victim’s apartment and pushed her into the bedroom. Defendant proceeded to throw her onto the bed and cut off her clothing with a knife. Defendant then used an electrical cord to tie her wrists together and bind her to the bed. Defendant then repeatedly beat and raped the victim and forced her to perform fellatio on him. Defendant also forced the victim into the bathroom, had her lie down in the bathtub, and urinated on her face.

One of the victim’s neighbors heard someone screaming in the apartment building and went to the victim’s apartment. The neighbor knocked on the victim’s door but received no response. However, she did notice that the victim’s car engine was running in the parking lot and decided to call the police. The police arrived at the victim’s apartment and began to knock on the front door. After approximately 10 minutes of knocking on the door, one officer received permission from his supervisor to enter the victim’s apartment through a window. As the officer was doing so, defendant opened the front door of the apartment and shouted “emergency.” Defendant was arrested, and the police officers entered the apartment and found the victim in the bedroom. The victim was lying on the bed in the nude, crying, and her face was covered with blood.

Defendant testified at trial that he was under the influence of alcohol, marijuana, and psilocybin (a hallucinogen) while he was at the victim’s apartment. Furthermore, defendant stated that the victim consented to the sexual activity. Defendant testified that he had an ongoing sexual relationship with the victim and had had sex with her on four or five previous occasions. Defendant stated that the victim would pay him money to participate in her sexual fantasies involving bondage. However, the victim did not have any money to pay defendant after he participated in the sexual activity on the date in question. According to defendant, he became angry when the victim did not pay him for engaging in the sexual activity with her. Defendant stated that he hit the victim in the face, and she fell onto the bathroom floor. Defendant further stated that the victim aggravated her injuries when she hit her head on the fixtures in the bathroom.

One aspect of defendant’s defense at trial concerned the victim’s alleged use of the drug dimethyltryptamine (DMT), a controlled substance. (See Ill. Rev. Stat. 1981, ch. 56x/2, par. 1204(d)(6).) Emmett Harmon, a toxicologist and clinical chemist, testified that he performed a drug screen on a sample of the victim’s blood. Harmon stated that he detected a “very sizable quantity” of DMT in the victim’s blood sample. Harmon stated that it was not natural to find DMT in a person’s blood, and that it would have to be artificially placed into a person’s body for it to show up in the blood on a drug screen.

Dr. Carl Hamann, a psychiatrist, testified that DMT is a hallucinogen and is similar to LSD. Dr. Hamann stated that an individual under the influence of DMT would experience an alteration of all sensory perceptions and would be unable to distinguish between reality and fantasy.

The victim denied ingesting any hallucinogenic drug on the day in question. In addition, the State called Dr. Joerg Pirl, assistant chief toxicologist at the Department of Public Health, to testify as to the results of the tests he performed on the victim’s blood samples. Dr. Pirl testified that he performed a mass spectrophotometry on the blood samples and found no presence of DMT in the victim’s blood.

Defendant contends that the jury was faced with a situation in which it had to determine which expert opinion was correct with respect to whether DMT was in the victim’s blood. However, defendant points out that the jury was not aware that the laboratory where Dr. Pirl, the State’s expert, worked was consistently producing untrustworthy and inaccurate test results. Defendant further points out that the laboratory was ultimately closed down as a result of its inefficiency and untrustworthy test results.

Defendant’s first contention on appeal is that his amended post-conviction petition, including the attached exhibits, raised substantial questions concerning the accuracy of the tests which the State relied upon at trial. As such, defendant argues that he should have been given a full evidentiary hearing to review the scientific evidence used at his trial.

The State argues that .the trial court properly dismissed defendant's amended post-conviction petition without an evidentiary hearing. The State contends that the presence or absence of DMT in the victim’s blood was not a dispositive issue at defendant’s trial, but rather was simply one element when his defense was considered as a whole. The State points out that in addition to defendant’s consent defense, defendant also raised an intoxication defense and provided various motives that the victim would have for falsely accusing defendant of raping her.

A trial court may dismiss a post-conviction petition without an evidentiary hearing if the petitioner fails to make a substantial showing that his or her constitutional rights have been violated. (Peo pie v. Albanese (1988), 125 Ill. 2d 100, 105; People v. Silagy (1987), 116 Ill. 2d 357, 365, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) In order to make a substantial showing that the petitioner’s constitutional rights have been violated, the allegations in the petition must be supported by the record or by accompanying affidavits. (Albanese, 125 Ill. 2d at 105; People v. Avitia (1989), 178 Ill. App. 3d 968, 969-70.) The denial of an evidentiary hearing on a post-conviction petition rests within the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion. Avitia, 178 Ill. App. 3d at 970; People v. Cobb (1986), 150 Ill. App. 3d 267, 270.

In the instant case, defendant alleged in his amended post-conviction petition that the scientific evidence admitted during the trial, the blood analysis, was unreliable. To support his allegation, defendant attached several reports concerning the quality of the work of the State’s laboratory which tested the samples of the victim’s blood. Included among the reports were copies of the March 26, 1985, report of the Director of Public Health, Thomas Kirkpatrick Jr.; the March 28, 1985, report of the Director of Law Enforcement, James B. Zagel; the May 24, 1985, report of the director of the Chemical Toxicology Institute, Dr. Randall C. Baselt; and a 38-page report titled “Toxicology Final Report” (Final Report). Each of the reports evaluated and commented about the problems that the laboratory was experiencing. As a result of the investigations and subsequent reports, the lab was closed in 1985.

According to the Final Report, the laboratory was closed for “consistently and habitually” producing inaccurate scientific analysis of evidence. The report indicated:

“The most consistent analytical errors made by the Illinois Department of Public Health Toxicology Laboratory occurred in blood alcohol analyses. The errors made were due to poor chromatography techniques which resulted in consistently higher blood alcohol level determinations. *** The ramifications of such errors on the state’s Implied Consent Program are obvious. ***
Additionally, analytical errors in the identification and quantitation of drugs and drug metabolites have been made by the Illinois Department of Public Health Toxicology Laboratory.
***
Reanalyses have also revealed that the Illinois Department of Public Health Toxicology Laboratory has either missed or was unable to detect certain drugs in specimens. Among the missed or ‘false negative’ errors are the drugs ethchlorvynol, salicylate, caffeine, acetaminophen, probenecid, nicotine, and benzoylecognine.” (Emphasis in original.)

The report concluded with the finding:

“The ramifications statewide of such errors could result in the questioning of all prima facia [sic] evidence in blood alcohol analyses, particularly values one- to two-hundredths above the statutory 0.10 g% level.” (Emphasis in original.)

Dr. Baselt’s report commented on the testing procedures used at the laboratory, finding most to be unacceptable during his 1985 visit. In his report, Dr. Baselt stated that a “[r]eview of quarterly U.S. Department of Transportation Blood Alcohol Survey results for the period September, 1976 to October, 1984 indicate [sic] that the laboratory performed very well on these proficiency tests, never varying by more than 0.01% in blood alcohol concentration from the target value. Yet, re-analysis, by outside laboratories of a number of blood specimens collected from defendants during 1985 show [sic] that the Toxicology Laboratory’s results have been overestimated by 10-20%.” Dr. Baselt recommended that the laboratory be closed as a result of the inaccurate scientific testing problems in 1985.

A recent Illinois Supreme Court decision, People v. Albanese (1988), 125 Ill. 2d 100, has examined the laboratory’s incompetence in conjunction with a post-conviction petition challenging the scientific evidence used at the defendant’s murder trial. In Albanese, the defendant was convicted of the 1980 arsenic-poisoning murders of his father and wife’s grandmother and the attempted murder of his brother. In 1981, the laboratory analyzed blood samples of the victims and determined that they were the victims of arsenic poisoning. In the defendant’s post-conviction petition and at his evidentiary hearing, the defendant argued that he should be granted a new trial based on the laboratory’s unreliable scientific analysis. Albanese, 125 Ill. 2d at 109.

The Albanese court considered the same reports that defendant relies upon in the case at bar. In addition, the defendant in Albanese also included a report from the director of forensic and environmental pathology at the St. Louis University Medical Center School of Medicine in his post-conviction petition.

The Albanese court accepted the defendant's arguments as being truthful and accurate, but went on to hold that the defendant was not entitled to a new trial. (125 Ill. 2d at 111.) The court noted that the final report, along with Dr. Baselt’s report, gave no indication that the laboratory was experiencing problems with its scientific testing in 1981, when the lab discovered the presence of arsenic in the blood samples. (125 Ill. 2d at 111.) The court stated that there was no evidence to show that the conditions which existed in 1985 and required the lab to close were also present in 1981.125 Ill. 2d at 112.

The Albanese court further noted that even assuming arguendo that the 1981 lab results were inaccurate or unreliable, the defendant still would not be entitled to a new trial. The evidence adduced at trial indicated that the scientific evidence disclosing arsenic in the victim’s blood was merely one link in a chain of circumstantial evidence tying the defendant to the arsenic-poisoning murders. (125 Ill. 2d at 113.) The court concluded that the cumulative effect of the evidence, even absent the lab’s scientific test results, would be sufficient to convict the defendant of the crimes charged. 125 Ill. 2d at 113.

In the case at bar, defendant alleged that the lab’s analysis of the victim’s blood samples was inherently unreliable and inaccurate such that he was deprived of a fair trial. As such, defendant contends that the trial court erred when it dismissed the post-conviction petition without an evidentiary hearing. We disagree.

As we previously stated, defendant has alleged that the lab failed to discover the presence of DMT in the victim’s blood when it performed the tests in 1982. However, defendant has failed to establish, either in his amended petition or in the attached affidavits and reports, that the lab’s testing procedures in 1982 resulted in inherently unreliable test results. Simply because the lab experienced “problems” and was closed down in 1985 in no way establishes that the “problems” existed in 1982. See Albanese, 125 Ill. 2d at 112.

In addition, unlike the situation in Albanese, defendant exercised his opportunity to question the lab results at trial. Dr. Raymond Bath, the director of the toxicology laboratory at the School of Medicine in Rockford, testified that it was “most definitely” possible for one chemist to find DMT in a blood sample, and another chemist not to find it. Dr. Bath explained that the results could differ depending on the type of test performed on the samples. Dr. Bath concluded by stating that the fact that a chemist did not find the presence of DMT in the blood sample does not mean that the drug was not present in the sample. Thus, defendant was able to attack the lab’s findings at trial.

Defendant admits presenting evidence on this issue at trial but argues that he could not fully present the issue to the jury because he was not aware of the incompetency of the lab work. However, defendant failed to allege, either in his amended post-conviction petition, supporting affidavits and reports, or in his brief on appeal, any facts which would indicate that the lab work done in 1982 was inherently unreliable or incompetent.

Defendant argues that the trial court should have granted his request for an evidentiary hearing to allow him the opportunity to argue the reliability of the lab’s test results. Defendant contends that the Albanese court had the benefit of a complete evidentiary hearing before making its factual conclusions. A reading of Albanese does indicate that the defendant received an evidentiary hearing with respect to the McHenry County trial (125 Ill. 2d at 110), but did not receive a hearing in the Lake County proceedings (125 Ill. 2d at 115). The supreme court held that the Lake County circuit court did not err in failing to hold an evidentiary hearing because the defendant failed to make a “substantial showing” that his constitutional rights were violated. (125 Ill. 2d at 115.) We believe that the Albanese decision directly supports the trial court’s refusal to grant defendant an evidentiary hearing with respect to defendant’s claims of inaccurate scientific testing in the present case. Defendant failed to make a “substantial showing” of a constitutional deprivation of his rights in this case. We make this determination after carefully reviewing defendant’s amended post-conviction petition, along with its accompanying reports, letters, and affidavits.

Defendant’s next contention on appeal is that he should have been given an evidentiary hearing to prove that his sixth amendment right to be tried by a jury selected from a fair cross-section of the community was violated. Defendant argues that the method of choosing the jury venire unfairly excluded non-Caucasians in defendant’s case. We disagree.

Defendant cites Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, to support the proposition that the statistical evidence presented in his amended post-conviction petition was sufficient to raise a prima facie case of racial discrimination. In Bat-son, the Supreme Court held that a prosecutor may not use peremptory challenges to exclude veniremen solely on account of race. (476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1722-23.) The court stated that in order to establish a prima facie case of purposeful discrimination, the defendant must demonstrate that he or she is a member of a cognizable racial group and that the prosecutor has used peremptory challenges to remove members of that group from the venire. 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; see People v. Jones (1988), 177 Ill. App. 3d 663, 665-66.

We do not believe that Batson is applicable in the present case. Batson did not involve a claim that the jury was not selected from a fair cross-section of the community but instead dealt with the consequences of a prosecutor’s use of peremptory challenges to have a direct impact on the selection of a jury after the venire had already been chosen. As such, we will review defendant’s contention under a sixth amendment analysis.

The sixth amendment to the United States Constitution requires that a petit jury be drawn from a venire representing a fair cross-section of the community. (Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697.) The Taylor court noted that there is no requirement that the petit jury actually chosen must mirror the community and reflect the various distinctive groups in the community. (419 U.S. at 538, 42 L. Ed. 2d at 702-03, 95 S. Ct. at 702.) The court further stated that defendants are not entitled to a jury of any particular composition. 419 U.S. at 538, 42 L. Ed. 2d at 703, 95 S. Ct. at 702; see also Lockhart v. McCree (1986), 476 U.S. 162, 173-74, 90 L. Ed. 2d 137, 148, 106 S. Ct. 1758, 1765 (limited scope of fair-cross-section requirement is an “inevitable consequence of the practical impossibility of providing each criminal defendant with a truly ‘representative’ petit jury”).

In order to demonstrate a prima facie violation of the fair-cross-section requirement, a defendant must show that (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in the venires from which juries are chosen is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to the systematic exclusion of this group in the jury selection process. (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668; People v. Sledge (1989), 183 Ill. App. 3d 1035, 1043-44.) Once the defendant has made a prima facie showing of discrimination in the jury venire selection process, the burden shifts to the State to demonstrate that a significant State interest is advanced by those aspects of the selection process which result in a disproportionate exclusion of the “distinctive” group. Duren, 439 U.S. at 367-68, 58 L. Ed. 2d at 589, 99 S. Ct. at 670; People v. Broadnax (1988), 177 Ill. App. 3d 818, 827-28.

In the case at bar, the venire from which defendant’s jury was selected consisted of 60 persons, none of whom were black. According to defendant, who is black, the population of Winnebago County was 6% to 7% black at the time of defendant’s trial. In addition, defendant claimed that the population of Rockford, the city where defendant lived and the crime occurred, was approximately 13% black. The trial court accepted these figures as accurately reflecting the results of the 1980 U.S. census. Thus, based on the census, defendant argues that a truly random jury selection process would have resulted in at least three or four “non-caucasians” in the venire.

We believe that, after applying the Duren three-prong test to the facts of the instant case, defendant has failed to establish a prima facie violation of his right to a jury selected from a fair cross-section of the community. As to the first element, the fact that defendant is black does place him in a “distinctive” group within the community, (Lockhart, 476 U.S. at 175, 90 L. Ed. 2d at 149, 106 S. Ct. at 1765-66. ) Thus, defendant satisfies the first prong of the Duren test.

As to the second and third prongs of the Duren test, defendant argues that the method of choosing the jury unfairly excluded “noncaucasians” from being a part of the venire from which defendant’s jury was chosen. To support this assertion, defendant compared the population of blacks in Winnebago County (6% to 7%) to the number of blacks on his venire (zero). We do not believe that these allegations are sufficient to establish a prima facie violation of the fair-cross-section requirement under the sixth amendment. Defendant has failed to allege any facts which establish that the underrepresentation of blacks is due to some systematic exclusion in the jury selection process. (Duren, 439 U.S. at 364, 58 L. Ed. 2d at 587, 99 S. Ct. at 668.) In Duren, the selection process utilized allowed women to exempt themselves from serving on a jury, with the exemption becoming automatic if the woman did not respond to the jury summons. (439 U.S. at 366-67, 58 L. Ed. 2d at 588, 99 S. Ct. at 670.) This exemption was expressly limited to women and resulted in women comprising only 15.5% of the venire persons, even though 54% of the county’s population were women. The Duren court held that this underrepresentation was sufficient to establish a constitutional violation of the fair-cross-section requirement. 439 U.S. at 370, 58 L. Ed. 2d at 590-91, 99 S. Ct. at 671.

In the case at bar, the process of selecting persons to serve on juries was done by utilizing voter registration lists. The selection of venires by using voter registration lists is expressly authorized by statute in Illinois. (Ill. Rev. Stat. 1981, ch. 78, par. 25; see Sledge, 183 Ill. App. 3d at 1045.) Using voter registration lists to select persons to serve on juries is facially neutral, as it allows no opportunity for subjective or racially motivated judgments. (Broadnax, 177 Ill. App. 3d at 831.) Defendant made no allegation, either in his amended post-conviction petition or at the hearing on the State’s motion to dismiss the petition, to support his claim that using a voter registration list to choose the venire in the present case unfairly excluded non-Caucasians. Defendant did not allege any special exemptions, like those present in Duren, or any other reason why the use of voter registration lists would have a discriminatory effect on the selection of venires in Winnebago County. Absent such an allegation, we believe that the trial court properly determined that defendant failed to establish a prima facie case of racial discrimination in the jury selection process. As such, we do not believe that the trial court abused its discretion in dismissing defendant’s post-conviction petition without an evidentiary hearing.

For the above stated reasons, the judgment of the circuit court of Winnebago County dismissing defendant’s amended post-conviction petition is affirmed.

Affirmed.

LINDBERG and McLAREN, JJ., concur.