text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Robert Scherer, Defendant-Appellee.
    (No. 12337;
    Fourth District
    November 6, 1974.
    Basil G. Greanias, State’s Attorney, of Decatur (Patrick M. Walsh, Assistant State’s Attorney, of counsel), for the People.
    Norman J. Fombelle, of Decatur, for appellee."
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Following an arrest for unlawful transportation of liquor (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 502), defendant was subjected to a personal search which disclosed three packets of suspected cannabis. He was, thereafter, charged with unlawful possession of such in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56%, par. 704(d)). Under the authority of Supreme Court Rule 604(a)(1), the prosecution appeals from an order of the trial court suppressing the packets of cannabis as evidence.

Defendant was a passenger in the right front seat of a car driven by one Gagian which was stopped for speeding. When Officer Studebaker approached the car, he noticed the smell of alcohol on Gagian and the officer asked him to come back to the car in order to issue a speeding citation. Officer Ruble, who was waiting in the police car, testified that there was a strong smell of alcohol when Gagian sat in the squad car. Based upon a conversation with Gagian in the police car, Studebaker returned to the car to look for beer. Using a flashlight, Studebaker was able to see a container of beer in the front seat on the drivers side, where* upon Studebaker asked the passengers to step out of the car. When defendant, Scherer, stepped out of the car, Studebaker noticed a different container of beer overturned between defendant’s legs. The defendant, Scherer, testified that there were four opened cans of beer in the car. At this time, Studebaker notified the subjects that they were under arrest and proceeded to search them. Three plastic bags of suspected marijuana and a package of gum paper were found on defendant, Scherer. Another package of suspected cannabis was found on a second passenger.

The trial court ruled that there was probable cause to stop the speeding car, that the smell of liquor on Gagian and his conversation with the arresting officers provided reason to return to the vehicle to inspect it for the presence of liquor, and that the observation of the open beer can in the car provided probable cause to arrest Scherer for illegal transportation of liquor. The court ruled, however, that the cannabis be suppressed as evidence for the reason that it was discovered by a search that was outside the purpose of a lawful search incident to this arrest, i.e., a search for weapons or for evidence of the offense for which the arrest was made.

We reverse upon the authority of United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467, and Gustafson v. Florida, 414 U.S. 260, 38 L.Ed.2d 456, 94 S.Ct. 488. In Robinson, there was probable cause to arrest for driving with a revoked operator’s license. Defendant was convicted of possession of marijuana found during a personal search made at the time of the arrest. In sustaining the conviction, the Supreme Court reversed' the court of appeals (United States v. Robinson (D.C. Cir. 1971), 447 F.2d 1215), distinguishing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868, which dealt with' a permissible “frisk” incident to an investigative inquiry based upon less than probable cause to arrest. The Supreme Court held that the fact of a lawful arrest establishes the authority for a full search of the person and that such a search is a reasonable search.

In Gustafson, there was a lawful arrest for failure to have a valid driver’s license in possession. A full search incident to such' arrest disclosed marijuana. In sustaining the conviction, the Supreme Court held that where there is a lawful arrest the officer was authorized to make a full search of the person even though the officer was not required to take such person into custody for the particular offense.

In Gustafson (414 U.S. at 263-264) and Robinson (414 U.S. at 235), the court stated that a full search was not limited to weapons on the person or to a search for evidence of the offense for which the arrest was made, but that “[i]t is the fact of the lawful arrest which establishes the authority to search * *

The same issue was presented and the same conclusion was reached in People v. Hayes, 55 Ill.2d 78, 302 N.E.2d 37. That opinion noted the scope of section 108 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, eh. 38, par-. 108 — 1), which provides that upon a lawful arrest the officer may reasonably search the person for purposes including:

“(c) Discovering the fruits of the crime; or (d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.” (Emphasis supplied.)

Any contrary constitutional claims are resolved in Robinson and Gustaf-son.

We concur in the finding of the trial court that there was probable cause to arrest defendant, but the order suppressing marijuana as evidence was reversible error.

The order suppressing evidence is reversed, and the cause is remanded for further proceedings not inconsistent with the views expressed.

Reversed and remanded.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Quinn, Defendant-Appellant.
    (No. 12283;
    Fourth District
    November 21, 1974.
    John F. McNichols, J. Daniel Stewart, and Thomas Nelson, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Michael Prall, of Circuit Attorneys Project, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Following conviction in a jury trial, the defendant was sentenced 1 to 3 years for criminal damage to property and 2% to 5 years for aggravated battery. The defendant raises two points in this court, each of which’ is without substance,

The defendant first contends that he was prejudiced during the voir dire examination of the jury when one prospective juror was asked whether or not he had any knowledge of the case as the court stated it to him. Juror Krause: “Just what I have read in the papers.” The court: “Is there anything, what you have read in the papers that might create an opinion or in any way prejudice you in serving this cause?” Juror Krause: “I have lived in Bloomington sixteen years, and if this William Quinn is Billy Quinn referred to commonly in the papers in the past, I know of him.” The Court: “I am not advised of that 0 * Defense counsel then moved for a mistrial stating that the defendant was prejudiced in that this juror had gotten before the jury the fact that “Billy Quinn has been known in the newspapers for 16 years as a person who would automatically be guilty of a crime.” The court then stated it thought counsel had misunderstood the juror. The juror had merely indicated that if this individual is Billy Quinn, he had been acquainted with him a long time in Bloomington and that is the sum and substance of the statement. Counsel then said that juror’s statement was that he had read about him in the papers. The court then stated: “Are you saying that this is Billy Quinn?” Counsel: “Yes, this man has also been known as Billy Quinn. There is no doubt about it.” These colloquies between court and counsel took place outside the presence of the jury and in addition juror Krause was dismissed. The trial court properly denied a motion for a mistrial. The position of trial counsel and of counsel on appeal is a jaundiced approach to the realities of trial practice. In People v. Malmenato, 14 Ill.2d 52, 150 N.E.2d 806, on the second day of the trial, a newspaper published an item, “Malmenato reportedly has a record of 43 arrests more or less and no convictions.” The court on the following morning interrogated the jurors and found only one of them had read the article. He was directed not to repeat its context in the presence of the other jurors and stated when questioned by the trial court as to whether he could be a fair and impartial juror, “It didn’t have that much effect on me.” In that case the supreme court discussed that an accused is entitled to a fair trial and that his rights must be jealously guarded by the court and by counsel, and where any prejudice is reasonably present or intimated a new trial should be granted. There being no prejudice a new trial was denied. In the instant case we would be required to infer that the jury made the same inference of previous convictions that defense counsel read into the juror’s statement and then add inference on inference by inferring that it supplied to the remainder of the jury the same conclusion and thus tainted the verdict. This strains the language used by the juror or any reasonable inference therefrom. No prejudice being shown here or reasonably intimated, the trial court did not abuse its discretion. In addition, the trial court would not permit the State to use evidence of prior convictions to impeach Mr. Quinn’s testimony as a witness. '

The occurrence incident is properly described as a tavern brawl wherein the bartender refused to servé Mr. Quinn because of disturbances between others at the bar with Mr. Quinns ácquaintances. Defendant’s brother hit the bartender in the face. Defendant and his brother threw stools over the bar and the bartender threatened to call the police if they did not leave. The bartender turned to call the police and the defendant threw a table across the bar striking the bartender on the forearm and was looking at the bartender as he threw the table. Thereafter defendant and his brother proceeded to knock table tops off their bases, chair seats had come unscrewed, ceiling tiles were damaged, a Budweiser light was broken, the bar itself was damaged and bottles of liquor behind the bar were broken. Damage to the interior of the tavern amounted to some $400-$500.

Defendant argues that the aggravated battery charge is part and parcel of the criminal damage charge and that the aggravated battery was impelled by no different or separate motives and cites People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679, People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293, and People v. Russo, 52 Ill.2d 425, 288 N.E.2d 412. Defendant likewise cites our People v. Long, 12 Ill.App.3d 974, 298 N.E.2d 784. While it may be said that the incidents here referred to arose out of an interrupted chain of circumstances, it seems clear to us that that motivation could very well be said to be independent. Certainly tossing a table at the bartender, and there was motive for doing that in the refusal of the bartender to serve the defendant another drink, and the continued damage to the property thereafter were separate and distinct motives and required different elements of proof. (See People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343; People v. Harper, 50 Ill.2d 296, 278 N.E.2d 771.) That there were separate criminal acts not produced by the same act is quite apparent and there appears to be no reason why the separate convictions cannot stand side by side.

The sentence of 2Vz to 5 years is excessive so far as the minimum is concerned. This error was waived in oral argument on the theory that People ex rel. Weaver v. Longo, 57 Ill.2d 67, 309 N.E.2d 581, is self-executing and that it became the statutory duty of the Parole and Pardon Board to determine the parole eligibility under the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 et seq.). It would seem that such provision is thus self-executing. Nevertheless, to avoid any possibility of misunderstanding, the judgment of the trial court is affirmed and the sentence imposed under that judgment is vacated and the cause remanded to the trial court with directions to reduce the minimum sentence of 1 year, 8 months, and to issue an amended mit-timus.

Judgment affirmed. Sentence reduced and new mittimus ordered.

TRAPP and CRAVEN, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH.

text:
    Gerald D. Adams, Plaintiff-Appellant, v. Carolyn K. Adams, Defendant-Appellee.
    (No. 12454;
    Fourth District
    November 21, 1974.
    Robert L. Douglas, of Robinson, for appellant.
    William F. Downey, of Marshall, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Woods, Defendant-Appellant.
    (No. 12478;
    Fourth District
    November 14, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John W. Foltz,, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Roger Woods, appeals from a judgment entered pursuant to a guilty plea for the offense of burglary and from a sentence imposed of 1 year and 6 months to 4 years and 6 months. Defendant raises two issues before this court: (1) Whether the court erred in entering judgments on defendant’s theft pleas, and (2) Whether defendant’s guilty plea is invalid because defendant was not admonished that conviction of the greater offense would preclude conviction on the lesser included offenses.

On May 17, 1972, the defendant and two others went to the premises of a William Jones in Danville, Illinois, entered, and removed three guns and a radio owned by William Jones and knives and a camera owned by Danny Jones. On September 12, 1972, defendant was indicted on one count of burglary and two counts of theft under $150. On January 22, 1973, defendant entered guilty pleas to all three counts and admitted taking guns from the house without authority. The court then admonished defendant of his various rights. In admonishing defendant regarding the possible penalties, the court stated that defendant had a right to apply for probation, conditional discharge, or periodic imprisonment. The Court further stated that the offense of burglary carried an indeterminate sentence of 1 to 20 years and proceeded to explain the meaning of an indeterminate sentence. The court added that the offense also carried a fine of up to $10,000 and a mandatory 3-year parole term. The court then informed defendant that each count of the offense of theft under $150 carried a fine of up to $1000 and imprisonment up to 1 year. The court then stated:

“At this time the plea of guilty of this defendant will be accepted by the Court, noted of record and judgment entered on the plea.”

On September 20, 1973, the court sentenced defendant only on the burglary count.

We agree with defendant that the facts here indicate that all three offenses arose from a single transaction. In People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, our supreme court held that where several counts of an indictment are based on a single act of the defendant, there can be only one conviction. Hence, if the judgment entered on the greater offense is valid, a conviction for a lesser offense arising from the same act must be reversed whether or not sentence was imposed thereon. In the instant case the court apparently entered judgment only on the burglary count, although the court’s statement in this regard is somewhat unclear. Nevertheless, the mittimus in this cause clearly records judgment on only the burglary. On the basis of this record we find that the trial court complied with Lilly and should be affirmed.

We see no merit to defendant’s argument that his guilty plea was invalid because he was not admonished that conviction for the greater offense of burglary would preclude conviction on the lesser theft offenses since had such occurred this court would be required under Lilly to vacate the lesser convictions.

Accordingly, for the reasons stated above the judgment and sentence imposed by the circuit court of Vermilion county is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Edward Walker, Defendant-Appellant.
    (No. 12504;
    Fourth District
    November 21, 1974.
    No appearance for appellant.
    No appearance for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On August 14, 1972, defendant-appellant, Thomas Edward Walker, was convicted pursuant to a guilty plea of four counts of forgery and was sentenced to 1 year of probation. On June 29, 1973, a petition to revoke defendant’s probation was filed alleging that defendant had violated the conditions of his probation by committing the offenses of aggravated battery and indecent liberties with a child. On July 24, 1973, defendant moved for a continuance of the probation revocation hearing until the pending criminal charges were resolved. The motion was denied. On August 22, 1973, a hearing was held on the motion to revoke probation, and the court found that defendant had violated the terms of his probation by committing the alleged offenses. On August 30, 1973, a hearing was held, and defendant was sentenced to Th to 7% years’ imprisonment on the underlying forgery offense. On January 22, 1974. this court granted defendant leave to file a late notice of appeal.

The Illinois Defender Project has moved to withdraw as counsel for defendant and has appended to the motion a brief in conformity with Anders v. California, 386 U.S. 738. The record shows proof of service of the motion and brief upon the defendant. The motion was continued to enable the defendant to file additional suggestions, and notice of this opportunity was given him. None were filed.

In discharge of our responsibilities we have examined the record. At the hearing on the motion to revoke probation defendant was represented by private counsel. William Checldey, the county probation officer, testified that defendant didn’t take his probation seriously and failed to make numerous reports. Paula Asbell, defendant’s 13-year-old stepdaughter, testified that on June 28, 1973, she went riding with defendant when defendant stopped the truck on a country road. She stated that she was scared and said ‘let’s go home,” but defendant replied “what’s the matter, ’fraid I’m going to rape you?” She stated that she said “no,” but that defendant stated “Well, maybe I will.” At this point she jumped out of the truck and started running, but defendant caught her, threw her down, and started hitting her in the face and choking her. She further stated that defendant then told her not to tell her mother or he would kill her whereupon he hit her in the stomach and chest. She stated that she received a cut requiring five stitches on her lip, a big bump on her chest, and a bruise on the side of her stomach. She stated that when they arrived home defendant told her mother that a truck door hit her in the face. She did not tell her mother what happened until the following morning. She then stated that defendant also had fondled her breast and touched her below the stomach. On cross-examination she stated that she had testified at a preliminary hearing that she didn’t remember whether defendant had touched her body. She further stated that she didn’t tell her mother about the incident immediately because she was afraid. The court indicated for the record that Paula was in a highly emotional state during her entire testimony.

Rosemary Walker, defendant’s wife, testified that her daughter arrived home on the evening in question with a badly cut lip and bruises in various places, that defendant told her that she had been hit by the truck door, and that she then took her to the hospital for stitches. She stated that her daughter did not tell her that evening what had happened. Over defendant’s objection she stated that her daughter told her the next morning, “Mom, Tom did this.”

Melba Lorene Walker, defendant’s mother, testified that defendant was hospitalized on September 26, 1972, as a result of an accident, and that she called defendant’s probation officer to tell him of the accident. Defendant did not testify in his own behalf.

The court then found defendant to have violated the terms of his probation by committing the offenses in question. We note that the hearsay testimony, objected to by defendant, of Rosemary Walker regarding what her daughter said to her the next morning was admitted into- evidence. However, there was clearly sufficient other evidence adduced to support the trial court’s finding.

On August 30, 1973, the court conducted a sentencing hearing on the underlying offense. Defendant was represented by counsel at the hearing. The court considered the presentence report, heard witnesses in aggravation and mitigation, and sentenced defendant to 2Vz to IVz years’ imprisonment with credit for time served in the county jail. The sentence imposed is within the statutory limits. On April 23, 1974, this court remanded this cause to the circuit court with directions to issue an amended mittimus reflecting credit for time served while on probation.

We agree that this record discloses no justiciable issue for review, and that the appeal is without merit and frivolous. Acccordingly, the motion of the Illinois Defender Project to withdraw as defendant’s counsel is allowed, and the judgment of the circuit court of Coles County is affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Goss, Defendant-Appellant.
    (No. 74-2;
    Third District
    November 21, 1974.
    James Geis and Robert Agostinelli, both of State Appellate Defender’s Office of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet (Edward Petka, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, David Goss, was found guilty of escape and was sentenced by the Circuit Court of Will County to a term of 3 to 10 years. He appeals, contending only that his sentence is excessive and should be reduced.

The defendant, an inmate of the Department of Corrections, Stateville Branch, was granted a furlough to attend the funeral of his mother on January 3, 1973. He was transported to the funeral home in Chicago by Officers Oliver Gray and Robert Jones. While at the funeral parlor on the North Side of Chicago, a group of what were described as “hoodlums” entered. They talked, laughed, exchanged handshakes and seemed to be congratulating the defendant about something. They encircled both Gray and Jones and obstructed and distracted both officers from watching the defendant. After the group scattered, both officers testified that the defendant was gone.

A police sergeant testified that the defendant told him that after he, the defendant, had left the funeral parlor, he received $15 from an uncle and went immediately to a hotel at 55th and Michigan. At 8 A.M. the next morning he went back to his uncle’s.

On the evening of January 4 the sergeant received information from a confidential informant that defendant could be found at 535 North Albany and surveillance of the building was ordered. At about 1 A.M., January 5 the defendant was seen at 535 North Albany. Through a brother of. defendant negotiations were made, and defendant surrendered peaceably to the police.

The defendant in this case was convicted of the crime of escape for failure to return from a furlough, a Class 3 felony (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 6—4(a)). A sentence for escape must be served consecutive to the term under which the offender is held by the Department of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(g)).

The minimum term for a Class 3 felony “shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court.” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c) (4).

The defendant, at the time, of his escape was serving a 50-100 year sentence for murder and 2 concurrent 5-10 year sentences for armed robbery and aggravated battery. The murder sentence was later reduced to 25 to 100 years in People v. Goss, 10 Ill.App.3d 543. It would appear that the prior history and character of the defendant would justify a higher minimum term than 1 year.

As to the nature and circumstances of the offense. This defendant was the first in over 400 to escape while on funeral furlough. The defendant was taken by unarmed guards to his mother’s funeral. It is apparent from the record that he left the funeral parlor with the active cooperation of a bunch of hoodlums. It is further likely that he would have remained at large were it not for the information obtained from a confidential informant by the Chicago Police Department. He only surrendered when he had no other realistic choice.

In this case the trial court examined the presentence report and was aware of its contents. It had the benefit of first-hand testimony of the witnesses and an opportunity to evaluate the credibility of the witnesses.

The court imposed a sentence within its discretion to impose and within the limits established by the legislature. There is no clear abuse of the court’s discretion. The sentence of from 3 to 10 years is not a substantial departure from the spirit and purpose of the law. People v. Taylor, 33 Ill.2d 417; People v. Barnes, 16 Ill.App.3d 837.

The judgment of the circuit court is affirmed.

Judgment affirmed.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Alexander, Defendant-Appellant.
    (No. 74-34;
    Third District
    November 21, 1974.

      James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Edward Alexander, appeals to this court from a conviction of robbery for which he was sentenced to a term of not less than 3 nor more than 9 years in the Illinois State Penitentiary foHowing a plea of guHty by defendant. On appeal in this court, the defendant contends that his waiver of counsel and waiver of indictment are both invalid because defendant was not admonished of the nature of the charge prior to the waiver, and also, that defendant had a right to counsel at the sentencing hearing; that a waiver at the arraignment does not continue through the subsequent sentencing procedures.

Defendant was charged on November 13, 1973, with the offense of robbery. A copy of an information making such charge was furnished to defendant. At the arraignment held on the same day, the court simply advised defendant that the charge was “robbery”. Nothing further was stated as to the nature of the charge. (See People v. Clark, 21 Ill.App.3d 316.) The court outlined the minimum and maximum sentences, and also advised defendant of his right to counsel and explained the right to and nature of a grand jury indictment. Thereafter, defendant waived appointment of counsel and waived indictment. Following the waiver of counsel and waiver of indictment, the prosecutor then explained the nature of the charge of robbery and the factual basis relating to the defendant. Defendant thereafter pleaded guilty. Defendant, on January 3, 1974, appeared, without assistance of counsel again at the sentencing hearing. Admonitions as to right to counsel, which were made at the arraignment, were not repeated at the sentencing hearing. Whffe the court did not expressly concern itself with the right to counsel at that stage of the proceeding, according to the brief of appellee, the court did inquire as to the wiHingness of the appeHant to proceed as well as affirm the previous plea of guilty. Defendant stated that he was prepared to proceed.

The first issue raised by appeHant is that the plea of guilty must be reversed and remanded because defendant’s waiver of indictment and waiver of counsel were improper in that the court failed to meet the requirements of Supreme Court Rule 401 (Ill. Rev. Stat. 1973, ch. 110A, par. 401). The provisions of Rule 401 require that, prior to the acceptance of the waivers, the court “by addressing defendant personally in open court” inform him of, and determine that he understands, among other things; the nature of the charge against him. There was no explanation of the nature of the charge in the instant case, so far as we could determine, prior to waiver of indictment. As we have indicated previously in People v. Schyska, 14 Ill.App.3d 557, 302 N.E.2d 666, and People v. Casley, 20 Ill.App.3d 1001, 313 N.E.2d 477, normally, where defendant is not advised of the nature of the charge, before waiver of indictment, defendant is entitled to withdraw his plea of guilty. While we feel that as to admonitions generally under Supreme Court Rules 401 and 402, the admonitions at any time during the course of proceedings should constitute a substantial compliance, the provisions of Rule 401 which require that the nature of the charge be explained by the trial court, before acceptance of a waiver of indictment, appears to be peculiarly appropriate in this case where defendant had no attorney at any time during the proceedings. Therefore, in accordance with Supreme Court Rule 401, we conclude that there has not been adequate compliance with said Supreme Court Rule since advice by the court to defendant as to the nature of the charge is a necessary precedent to a proper waiver of indictment.

In view of our disposition of this case, it is unnecessary that we discuss the issue involving the right to counsel at the sentencing hearing. This cause will be reversed and remanded to the Circuit Court of McDonough County with directions to such court to vacate the sentence heretofore imposed and permit the defendant to withdraw his plea of guilty, as well as his waiver of indictment, if he chooses so to do. The trial court may thereafter proceed to advise defendant in accordance with Rules 401 and 402, if there are to be any further procedings by waiver of indictment or plea of guilty.

This cause is, therefore, reversed and remanded with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and DIXON, J., concur.


text:
    The People ex rel. Donna Wisneski, Petitioner-Appellee, v. James Thomas, Respondent-Appellant.
    (No. 73-207;
    Third District
    November 21, 1974.
    John T. Kelly, of South Holland, for appellant.
    William J. Scott, Attorney General, of Chicago (Jerrald B. Abrams, Assistant Attorney General, of counsel), for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an action under the “Paternity Act.” The Circuit Court of Will County, after a jury trial, entered judgment against the defendant James Thomas.

In the complaint herein filed August 26, 1966, Donna Wisneski alleged that she was unmarried ánd the mother of a child born December 12, 1965, and that the defendant is the father of the child. Defendant plead not guilty. On April 11, 1973, the trial was at long last begun. Defendant, on this appeal on oral argument, contended that the failure to bring him to trial until the child was over 7 years old amounts to laches. While failure to prosecute a suit may have the same consequence as failure to institute any proceeding, the record in this case disclosed that no motion to dismiss for want of prosecution was ever filed by defendant. If defendant desired the benefit of an order of dismissal, he should have done what was required of him toward bringing the matter to a hearing. During the trial, the child was called to testify as a rebuttal witness. When she was brought into court the assistant State’s Attorney whispered in her ear while pointing to the defendant. Defendant contends that this action on the part of the prosecution amounted to a proferí of the child and was calculated to prejudice the defendant. It may have. Robnett v. People, 16 Ill.App. 299.

This appears to be a close case on the facts. The only person to testify for the prosecution apart from Donna Wisneski was her sister-in-law who merely stated that she had seen the parties together on two occasions. Donna admitted that she had named James Broadwell as the father when she was admitted to the hospital. She testified that at that time there was a James Broadwell living in Joliet. She further admitted that she caused the name of James Broadwell to be entered on the birth certificate as the father. The Vital Statistics Act (Ill. Rev. Stat. 1965, ch. 111%, par. 73-12(4)) in pertinent part provides:

“If the mother was not married to the father of the child either at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father 9 9

Not being a judicial admission, her declaration of paternity is not conclusive against her; nevertheless, while not only strong and highly persuasive substantive evidence against her, it has in addition a special value against her in that she is discredited in her testimony on which she relies. McCormick on Evidence § 262 (2d ed. 1972).

In view of the foregoing, we will reverse and remand for a new trial and deem it unnecessary to discuss other alleged errors urged by defendant.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.

       The trial judge ruled that she was incompetent.


author: Mr. JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Quintin Wallace, Defendant-Appellant.
    (No. 12403;
    Fourth District
    November 6, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Robert L. Berkover, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edmond K. Featherstone, Defendant-Appellant.
    (No. 12111;
    Fourth District
    November 6, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defenders Office, of Springfield, for appellant.
    Edwin R. Parkinson, State’s Attorney, of Jacksonville, for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from his conviction upon a jury verdict finding him .guilty of :“[d]riving while under the influence of liquor or narcotic drug, in the manner and form as charged in ■ the complaint.” A fine of $500 was imposed.

The complaint charged violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch 95%, § 11 — 501), in the language:

“(D)riving while under the influence of intoxicating liquor or narcotic drug, * * * then and there being under the influence of intoxicating liquor or narcotic drug, ” *

The conviction is reversed upon the authority of People v. Johnson, 16 Ill.App.3d 819, 307 N.E.2d 159, and People v. Smith, 15 Ill.App.3d 107, 303 N.E.2d 508. In Johnson, defendant pleaded guilty to charges in substantially identical language:

“In a single count complaint, defendant was charged with offenses provided for under separate paragraphs of the statute (Ill. Rev. Stat. 1971, ch. 95%, § 11 — 501(a) and (b)). Each paragraph charges disparate and alternative acts; each sets forth a different offense with differing necessary elements. As a result, we here : find that the complaint is ¡void for failure to set forth the nature and elements of the charge with certainty as required by both the federal constitution (amendment VI) and section 111 — 3(a) (3) of the Code.of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, § 111 — 3(a) (3));. See People v. Heard, 47 Ill.2d 501, 504-505 [266 N.E.2d 340] (1970); * * *.’’ 16 Ill.App.3d 819, 820.

The opinions in Johnson and Smith apply to the rule stated in People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340.

The judgment is reversed.

..Reversed.

SIMKINS and KUNCE, JJ., Concur.


author: Mr. JUSTICE CLYDESDALE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Eugene Palmer, Defendant-Appellant.
    (No. 12374;
    Fourth District
    November 6, 1974.
    John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Patrick M. Walsh, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CLYDESDALE

delivered the opinion of the court:

The defendant, William Eugene Palmer, was indicted by the Macon County grand jury on February 8, 1973, in a two-count indictment charging him in Count I with armed robbery and in Count II with robbery.

Mr. Palmer allegedly took a billfold containing $9 from Virginia Beth-ards on December 9,1972, while armed with a claw hammer. On arraignment defendant pleaded not guilty to both counts.

On May 17, 1973, Palmer appeared before the court and offered to change his plea of not guilty to the robbery charge in return for a dismissal of the armed robbery charge and an agreed-upon sentence.

The State informed the court that the agreement was that defendant would plead guilty to Count II of the indictment (the robbery count) in return for the State’s dismissal of Count I of the indictment (the armed robbery count). If the presentence report recommended probation or conditional discharge, the People would concur in this. If it recommended denial, the People would concur in that. If the court refused to grant probation or conditional discharge, the State would recommend a term in the penitentiary of 2 to 6 years. Defense counsel made no contention that the agreement had been otherwise than stated. The court indicated that it tentatively concurred in the proposed disposition.

At the sentencing hearing held on June 4, 1973, the court adopted the recommendation set forth in the presentence report and denied probation. The court then, pursuant to the plea negotiations, sentenced the defendant to the Department of Corrections for a minimum term of 2 years and a maximum term of 6 years, plus 3 years parole. On motion of the State, Count I of the indictment was nolle prosequi and stricken.

Defendant appeals from that judgment and sentence and alleges as error that he was not adequately admonished as to the maximum sentence provided by law for robbery, nor was he adequately admonished as to the minimum sentence provided by law for robbery, as required by Supreme Court Rule 402.

Supreme Court Rule 402 reads in part, as follows:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
# # #
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.”

Since the defendant has not alleged any other errors under Rule 402, we need only concern ourselves with the question of whether or not the trial court substantially complied with Supreme Court Rule 402(a)(2) in accepting the defendants plea of guilty. What constitutes substantial compliance must be determined by an examination of the facts and circumstances as set out in the entire record. At the hearing on May 17, 1973, the court advised the defendant as follows:

“* * * There are a number of ways that cases can now be disposed of. You could be sentenced to probation. You could be admitted to full probation, you could be admitted to a partial sort of probation where you spend some time in jail, some time outside, you could as the worst possible option, be sentenced to the penitentiary ” *

Further, in the proceeding on May 17, 1973, the court explained the penalty for robbery in the following terms:

“The Court: One to twenty. Now, Mr. Palmer, robbery is classified under our law now as a Class 2 felony. Felonies are racked up now by classes depending on their seriousness. Class 2 stands third from the top. Murder is number one, Class 1 next, and then comes Class 2, and all Class 2 felonies carry a minimum of one and a maximum of twenty. This is the indeterminate sentence. Now the Court can give you any sentence within those limits. If I were called upon to sentence you I couldn’t give you less than one, I couldn’t give you more than twenty, but I could give you any combination of years in between, and good sentencing requires that the maximum be three times the minimum, or just taking a for instance, it could be one to three, it could be six to eighteen, it could be three to nine, any combination of years. We have already come to a tentative agreement of two to six, but the point specifically is that the statute sets some outside limits on the Court, not less than one, not more than twenty, but the Court has the elbow room to fix anything in between that the Court thinks is appropriate. Do you believe you understand what the maximum and minimum punishments could be in a situation like this?”

The defendant answered in the affirmative and his attorney acknowledged that he believed the defendant understood the nature of the charge and the maximum and minimum punishment.

Defendant’s first contention is that the court erred in failing to inform him of the maximum sentence prescribed by law since it did not inform him of the provisions for mandatory parole under the Illinois Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8— 1(e).) He next contends that under Rule 402 he was not adequately admonished as to' the minimum sentence provided by law for the crime, of ^robbery in that he was not informed of probation, conditional discharge or periodic imprisonment, all authorized dispositions under section . 5 — 5—r3 of the Unified Code. ;

Defendant’s arguments are without merit and are controlled by a recent decision of the Supreme Court of Illinois in People p. Krantz, 58 Ill.2d 187, 317 N.E.2d 559. The court specifically held that there is substantial compliance with Rule 402 if an accused prior to the' acceptance-of his plea of guilty is advised by the court of. the sentence to jail or imprisonment that might at that time be imposed if his plea is accepted.

. The court then went on to further clarify Rule 402Jn the following language: ; ,

“We make this comment because the question has arisen (e.g., see People v. Harl, 11 Ill.App.3d 372) whether substantial compliance with Rule 402(a)(2) requires also that an accused be admonished as to certain provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973,- .ch. 38, par. 1001 — 1—1 et seq.\, which became effective January 1, 1973.. For example, since any disposition-under the Code is a ‘sentence’ (par. 1005-^f — 19), must a defendant be informed by the court concerning the possible dispositions by way of periodic imprisonment, probation, conditional discharges in cases of juvenile offenders and fines (par. 1005 — 5— 3) ? And must he be informed of the.provision for mandatory parole in case of an indeterminate sentence for a felony (par. 1005 — 8— 1(e) )? As we have just noted, we do not consider that substantial compliance with Rule 402(a) (2) requires such admonitions. The Code was enacted subsequent to Rule 402. The rule was designed to satisfy the requirements of Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, and to . give visibility to plea agreements. Committee Comments, 50 Ill.2d R. 402.” 58 Ill.2d 187, 195.

The Krantz case is clearly dispositive of the issues raised on . this appeal. We therefore affirm the judgment of the trial court.

Judgment affirmed.

.TRAPP, P. J, and SIMKINS, J., concur.


author:
Mr. PRESIDING JUSTICE SMITH
      Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frances Eugene Bolyard, Defendant-Appellant.
    (No. 12588;
    Fourth District
    November 14, 1974.
    SIMKINS, J., dissenting.

      John F. McNichols and John L. Swartz, both of State Appellate Defenders Office, of Springfield, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Jerry Finney, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

. The defendant was found guilty of indecent liberties with a 13-year-old girl after a bench trial in the circuit court of Macon County. Sentenced to an indeterminate term of 6 to 18 years, he now contends (1) that his guilt was not established beyond a reasonable doubt and (2) that comments of the trial court suggest that a greater sentence was imposed because the defendant applied for probation. Neither assignment of error merits a new trial or a reimposition of sentence.

The State’s evidence is supplied by three witnesses. Judy Goodwin, victim of the indecent liberties, lived with her mother where the defendant, a 38-year-old man, had been staying for approximately 10 days. Judy’s mother was at work and her brothers were outside. Judy and the defendant were alone in the house. Judy testified that the defendant began to talk to her about matters dealing with sex, illicit conduct and its relationship to drinking, that the defendant made advances to her by placing his hand on her back and rubbing, and that during the course of the time while they were alone, he had consumed a 6-pack of beer. He locked the front door and the dining room door, and forced her into her mother’s bedroom; when she attempted to resist the defendant, she was unsuccessful, and the defendant pulled Judy’s shorts and underpants down and attempted intercourse. Faffing the first time, he applied vaseline to himself and successfully performed the act of sexual intercourse. While using the vaseline, Judy testified that he held her down with his legs. After completion of the episode, there was a knock on the door. The defendant answered it and left with a man who came to the door. Judy told her mother of the incident the next day after the defendant had gone to work. She was thoroughly cross-examined and there are inconsistencies in her statement as testified by her mother, the police officer, and the story she told to an investigator for the Illinois Defender Project as to some of the chronology and as to the number of times that she was penetrated.

The mother stated that she arrived home from work around 11 or 11:30 P.M., and that the defendant was the only one present. She went to her bedroom to change her clothing and noticed that the bed was messed up and a jar of vaseline was out of its usual place. Judy and her brothers had spent the night with their baby sitter, a neighbor, and when Judy returned home the next morning, her mother testified that she appeared to be avoiding the defendant and that this was unusual. After the defendant left for work, the mother asked Judy what was wrong, and she stated that she got a funny look on her face and stated that she had been raped by the defendant.

The neighbor lady with whom the children stayed likewise corroborated the testimony as to the arrival of Judy around 6 P.M., that she was nervous, and that she was wearing a blouse that was tied and shorts. Judy did not mention the incident to her, nor did she mention the vaseline incident either to her mother or to the police officer, nor did she tell the police officer about the removal of her blouse and fondling of her breasts by the defendant.

The defendant testified that it was Judy who brought up the subject of sex into their conversation and that she brought a sex education book from her mothers bedroom and began to show it to him. She showed him pictures of the male and female genital organs and of the female breasts. He testified that she lifted her halter and revealed her breasts to him as a comparison to one of the pictures in the book. Defendant stated that he told her to stop her conduct and to put the book away. He denied taking any indecent liberties with her and denied ever going into the bedroom. He conceded that he had consumed a 6-pack of beer. Judy denied in toto his testimony on the stand in rebuttal.

It is at once apparent that we here deal with the credibility of witnesses. The general rule of course is that where a conviction for indecent liberties with a child is based upon that child’s testimony, the evidence must be clear and convincing or otherwise corroborated. (People v. Ulrich, 30 Ill.2d 94, 195 N.E.2d 180.) In the resolution of this well established doctrine, we may first note that there was corroboration by the mother as to the condition of the bed and the vaseline jar, that the victim appeared to avoid the defendant the next morning, and the testimony of the baby sitter that Judy appeared nervous when she arrived at her home. Aside from this, however, the trial judge found the evidence clear and convincing without corroboration and so stated. He characterized the story of the defendant as incredible. It is but a truism to say that the resolution to be here made depends upon the credibility of the witnesses and the authorities on this point are legion. (See 10A Ill. Digest Credibility of Witnesses 742(1) (1969).) It has likewise been stated that in charges of this character, the duty of the reviewing court is to carefully examine the evidence, and that due weight must be given to the judgment of the trier of facts as to the credibility of the witnesses and its finding of guilt will not be disturbed unless the evidence is so .unreasonable as to leave a reasonable doubt of the defendant’s guilt. People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292.

. It should, be noted in the case at bar that the testimony of the prosecutrix, notwithstanding some apparent inconsistencies, did' establish all of the essential elements of the offense and, as,.to. this extent, it was unshaken. (People v. Partee, 17 Ill.App.3d 166, 308. N.E.2d 18; People v. Wendt, 104 Ill.App.2d 192, 244 N.E.2d 384.) While the facts vary from . case to. case, as well as the nature, and the severity of the acts constituting the crime, we need to remember that the crux of section 11 — 4 of the Criminal Code (Ill. Rev. Stat. .1971, ch. 38, ft 11 — 4) is to protect -immature children from being deliberately and knowingly victimized 'by. adults.- r

The charge of indecent liberties is easy to make and hard to defend. Many elements may be taken into consideration, such as the delay in making a complaint. (People v. Padfield, 16 Ill.App,3d 1011, 307 N.E.2d 183.) The nature of the complaint and the circumstances testified to, , to have viability, depend upon the credibility of the witnesses. Some of Judy’s uncertainty may well originate from' the embarrassing nature of the offense. She had engaged in an activity she knew to be improper. This. embarrassment was compounded due to the. nature of the relationship between the defendant and Judy’s mother and the fact that the deferidant literally resided in the same residence with Judy for some 10 days. A delay, therefore, of a- little over 1 day under the circumstances here related is neither persuasive nor controlling. This court cannot substitute .its judgment for that of the trier of fact on the issue of- credibility unless the proof was so unsatisfactory as to warrant a reasonable doubt of guilt. People v. Brandys, 15 Ill.App.3d 379, 304 N.E.2d 471.

The defendant next argues that his sentence should be reduced because of the court’s announced sentencing policy, as it was based on principles no longer conforming to. accépted sentencing practices. This issue arises from a comment made by the court on the presentence hearing. At this hearing, the defendant requested probation and it was denied. In denying- probation, the trial judge commented that some years back in that circuit there was an inflexible policy that any crimes involving physical and sexual violence were simply not probationable, and that the lawyers in that day didn’t even-request probation. He stated, “The net effect of submitting the. probation, request at that time was only to increase the- sentence of your crime. This was a matter that was well understood by the bar of the Sixth Circuit. In.recent years perhaps that •policy has-been rélaxed somewhat,-.-'although, personally I still subscribe to it.” From this statement, the defendant argues that the trial court invited the defendant to apply for probation with the avowed purpose of thus laying a foundation for a heavier sentence, which was then imposed. We regard the statement as a passing statement of past conditions with a recognition of new and changed policies with which the .court did not agree, but clearly recognized and presumably followed.

In People v. Watts, 19 Ill.App.3d 733, 312 N.E.2d 672, a 22-year-old defendant was acquitted of the charge of. rape and kidnapping by a jury, but found guilty of indecent liberties with a 16-year-old girl. In that case, the defendant had no previous record, was 22 years of age, and had been acquitted of any charges involving violence, bruises or threat of force. The trial judge imposed a sentence of 6 to 10 years which the reviewing court reduced to a term of 4 to 10 years. In the case at bar, we recognize as the court did in Watts that the crime of indecent liberties is a Class 1 felony under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38., par 1005 — 8—1(c)(2)) and the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term. In the case at bar we have a 38-year-old man with no prior felony convictions, although he had been convicted of passing bad checks on three different occasions. The victim was a 13-year-old girl. It is true that that she was not beaten, permanently disfigured nor threatened with loss of life. On the other hand, the record indicates that the defendant used force and that the victim was in fear. In imposing sentence, it is apparent that the court was unhappy with the defendant’s testimony. It characterized the defendant’s testimony about the book on sex as one of the strangest that he had ever heard. His judgment of guilt was based exclusively on that credibility. The trial court had the opportunity to see and observe the parties and is in a better position to make a determination of sentencing than is this court. The minimum sentence fixed by the statute is 4 years and is a Class 1 felony. This factor indicates legislative displeasure with this type of crime. (People v. Brown, 107 Ill.App.2d 406, 246 N.E.2d 61.) Many factors properly considered in the trial court are not available to us here. We cannot say from this record that this sentence because of the nature of the crime is so excessive as to indicate an arbitrary abuse of discretion in sentencing, or shocks the conscience of this court.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

TRAPP, J., concurs.

Mr. JUSTICE SIMKINS

dissenting:

I concirr in the majority opinion insofar as it affirms the conviction. The record shows that on November 9, 1973, the presentence hearing was held and the defendant requested to be admitted to probation. In denying this request the trial judge stated:

“There was a time some years back in this court when the then judges of the court had what amounted to an inflexible policy that any crimes involving physical violence, any crimes involving sexual violence, were simply not probationable, and the lawyers in that day didn’t even submit probation requests. The net effect of submitting a probation request at that time was only to increase the sentence of your client. This was a matter that was well understood by the bar of the Sixth Circuit. In recent years perhaps that policy has been relaxed somewhat, although personally I still subscribe to it. # * *” (Emphasis added.)

He then imposed the sentence in question. If plain words import the meanings ordinarily attached to them this defendant’s sentence was increased by his request for probation, and if this be true it constitutes an abuse of judicial discretion which should not be countenanced by this court. I do not regard the statement in question as a statement of a new policy with which the trial judge did not agree “but * * * presumably followed.” In any event I am not content to speculate about the matter. I would affirm the conviction, but remand for resentencing before a different judge.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald E. Dill, Defendant-Appellant.
    (No. 12462;
    Fourth District
    November 14, 1974.
    John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Kai A. Wallis, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On March 12, 1973, defendant, Donald Dill, was convicted, pursuant to a guilty plea, of the offense of burglary and sentenced to 3 years’ probation. On July 31, 1973, defendant’s probation was revoked and defendant was sentenced to a l-to-4-year term of imprisonment. Defendant appeals from the- sentence imposed and raises two issues for resolution by this court: (1) Whether the trial court abused its discretion in sentencing defendant to a term, of imprisonment without affording defendant the opportunity to be sentenced under the provisions of the Illinois Dangerous Drug Abuse Act; and (2) Whether the trial court erred in sentencing defendant to a term of imprisonment upon probation revocation without ordering an up-to-date presentence report.

Two of thé conditions of defendant’s probation were as follows:'

“L. He shall not gamble, use any drug or other substance prohibited by law, or use intoxicating liquor.
M. He shall not enter any place where the principal business is. •the sale of intoxicating liquor or any pool hall where intoxi-. eating liquor is sold.” . •

At defendant’s probation revocation hearing James Bruehl and Glen Ows-cany, both salesclerks in a Bloomington, Illinois, liquor store, testified-that, on June 23, 1973, they observed defendant emerge from a cab and. “stagger” toward the liquor store. They testified that defendant was denied, entrance into the store because it was thought that he -had already had too much to drink. They then proceeded to describe the ensuing fracas that occurred-when defendant tried to force his way into the store. ..The police were then called to the scene. Defendant testified that he had been drinking on the day in question and “I had twó úembütals around' 10:00 and then around 12:00 I had maybe three moré.” Defense counsel then inquired into defendant’s past drag problems. Defendant stated that he was discharged from the army “more or less on.the basis of drugs and so forth.'” He stated that prior to entering the army he had been involved with,drags, “mostly speed and downers.” He stated, however, that while in the army his involvement with drugs increased:

“Defendant: Well, I jumped up from speed and downers and the like to heroin and opium and morphine, and LPM. They gave some gas masks, they had this nervous gas, that you just, take a coke arid you inject it into the coke and you drink it and it serves ,like a numbing thing *' *

He further testified that after leaving the army in 1969 he went to live in California with á friend who “was mostly involved with heroin and I lost quite a bit of weight * * He stated that he knew he needed help with his drag problem so he went to a hospital in Danville, but he happened to know two péople in the hospital and “drags were easily attainable.” He stated that at the present time he needs assistance for his drug problem and has been talking with the people at Project Lighthouse in Bloomington and Gateway House in Springfield, but due to his present court situation they would not accept-him. He stated, however, that he could be admitted to a 6-month veterans program in Indianapolis, Indiana. William White, the director of Project Lighthouse, a drug-rehabilitation program in Bloomington, testified that he has recently talked with defendant on five different occasions and stated:

“I think probably my most initial impression, and again this is guarded, as we go through —' I went through the alcohol arid drug history with Don, and I had some of the same unsureness about how accurate all of the infonriatiori was that I was getting when we discussed some other areas. The alcohol and drag history itself goes back to about roughly the age of twelve. At that point he went through some short periods of glue sniffing, which is riot that uncommon at that age. But again, at about fourteen or fifteen he began experimenting with both drugs and alcohol quite heavily, and it seemed that as he moved towards the age of about twenty both the drug and alcohol usage increased considérably. In terms' of type of drugs used, it would probably be easier to fist the ones that he has not used. The majority of classification of drugs that he has used are amphetamines, barbiturates, hypnotics, a variety of kinds of psychedelics and opiates, including morphine, heroin and methadone.”

He stated that he advised defendant to seek further psychiatric evaluation and certain residential prograins. The State’s Attorney then recommended to the court some type of closely supervised long-term drug-treatment program. The defense counsel then agreed with the State’s recommendation regarding some type of closely supervised mandatory prograiri. The judge then imposed a 1- to 4-yeár term of imprisomhenf stating to defendant that he believed he could benefit from some type of drug treatment program, that such information should be forwarded to the penitentiary authorities, and that perhaps he could be paroled into some type of drug program. Nevertheless, the court further stated that some type of imprisonment was necessary, and that he would not accept the recommendations of the State and defense counsel.

Section 2 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91%, par. 120.1 et seq.) is entitled “Legislative Declaration” and provides:

“It is the public policy of this State that the human suffering and social and - economic loss caused by addiction to controlled sub- . starices and the use of cannabis áre" matters of grave concern to the people of the State. It is imperative that a comprehensive program be established and implemented through the facilities of the State, counties, municipalities, the Federal Government, and local and private agencies to prevent such addiction and abuse; to- promote research on the effects and consequences of the abuse of controlled substances and use of cannabis; to study the problem of the abuse of controlled substances and use of cannabis in this State and inform the public as to its findings; and to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community.” (Ill. Rev. Stat. 1973, ch. 91/a, par. 120.2.)

In this section of the statute the legislature has set forth, in clear terms, a firm, considered statement of public policy to be “* # * implemented through the facilities of the State * * Sections 8, 9 and 10 of the Act specifically detail the function of the trial court in the implementation of the public policy set forth in section 2.

We agree with the holding of People v. Robinson, 12 Ill.App.3d 291, 297 N.E.2d 621, insofar as it holds that the trial judge, when dealing with an individual convicted of a crime “has reason to believe” that the defendant is addicted, is required to exercise his discretion whether or not to invoke the Act. The record must demonstrate that the trial judge has, in fact, exercised that discretion. No formula is intended to be prescribed, but the record must, in some fashion, establish that the trial judge, in the exercise of his discretion, made a defiberate decision to impose sentence or other sanctions available to him under the Code of Corrections in lieu of invoking the provisions of the Dangerous Drug Abuse Act.

We do not agree that it is an abuse of discretion on the part of the trial judge to sentence a defendant to a term of imprisonment “without first giving him the opportunity to be sentenced under the provisions of the Illinois Dangerous Drug Abuse Act.” The trial judge is under no duty to initiate inquiry as to whether or not a defendant is addicted; he is under no duty to invoke the procedural provisions of the act in any case, and a defendant is not “entitled” as a matter of law to be afforded treatment under the act, nor is he entitled to be afforded the opportunity to elect to be so treated. These matters are clearly within the discretion of the trial judge. It is equally clear, however, that where the trial judge knows the defendant to be addicted or “has reason to befieve” that the defendant is addicted, he is required to exercise his discretion in determining whether or not to invoke the provisions of the Act either with or without the defendant’s consent.

During the sentencing hearing in this case neither defendant’s counsel, nor the State’s Attorney, nor the trial judge made any reference to the Dangerous Drag Abuse Act. We are therefore unable to determine, from this record, whether or not the trial judge did exercise his discretion in connection with the Dangerous Drag Abuse Act.

Accordingly, sentence is vacated and the cause is remanded to the trial judge for a new sentencing hearing in conformity with the views herein expressed.

Reversed and remanded.

SMITH, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger Hering, Defendant-Appellant.
    (No. 12301;
    Fourth District
    November 6, 1974.
    Robert I. Auler, of Auler Law Offices, of Champaign, and Marc Ansel, Senior Law Student, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Francis C. Hulin, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

■ ’ Defendant, Roger Hering, appeals from judgments entered on three counts for the unlawful possession of controlled substances and on one count for the unlawful possession of cannabis and from a concurrent sentence imposed of 2 to 8 years’ imprisonment on each of the controlled substance counts. Defendant raises two issues for resolution by this court: (1) Whether the warrantless search of defendant’s automobile was illegal, and (2) whether the court erred in denying defendant’s motion for a mistrial when remarks prejudicial to defendant were made in close proximity to the jury room.

At defendant’s trial the following testimony was adduced: On June 15, 1972, Robert Galt, a gas station employee, noticed defendant parked in an automobile near one of the station’s pumps. Defendant was lying across the front seat and was sweating profusely. Galt tried to awaken defendant, but defendant’s eyes were bloodshot, his speech was slurred, and he kept slipping back into unconsciousness or sleep. Galt became concerned that there might be something wrong with defendant and .called the State police. Officer Ennis found defendant lying on the front seat sweating and breaking out in goose bumps. After shaking him, Ennis finally awakened defendant who stated that he, and his buddies weren’t doing anything wrong shortly before again losing consciousness. After awaking him again, Ennis was able to obtain defendant’s driver’s license and to ask if he was sick or was a diabetic. Defendant responded that he was a diabetic. According to Ennis, * I asked him if he had taken medicine, an overdose, or if he hadn’t taken medicine. He said, no I don’t take dia — medicine for being a diabetic. He said that kept me out of the service.” Ennis then called an ambulance, and when the ambulance arrived two attendants and Ennis helped put defendant on the cot and into the ambulance. As soon as the ambulance left for the hospital, Galt asked if defendant’s car could be removed to the back of the. station so as not to' block the pumps. Ennis then permitted Galt to drive the car to the back of the station and followed him in the squad car. Galt then gave the keys to Ennis who looked into the car. According to Ennis, “* * * I was trying to find some medicine or pills or anything that, uh, he might have taken or might not have taken to cause his condition.” In the back seat Ennis found a paper sack with pills, tablets and other substances and a scale. Ennis then locked the car, and was later ordered by headquarters to proceed to the hospital. Upon arrival defendant was more coherent and indicated that he wanted to leave. After further conversation, defendant, was placed under arrest in the process indicating that he would not consent to a search of his car. Ennis then returned to the gas station, defendant’s car was transported to headquarters, and the sack of substances and a set of chemists scales Ennis had earlier observed were removed from the car and eventually taken to Springfield for testing. The substances were found to be methylene dioxiamphetamine, amphetamine salts, phenobarbital and marijuana resins. ■ j • • '

Acting on the results of the tests a complaint for a search warrant ;was filed on June 16, 1972. The allegations of the complaint are similar to the testimony adduced at trial including statements to the effect that the initial search was conducted so that Ennis could determine what medicine defendant was taking and could relay this information to the hospital. A search warrant was then issued and various other narcotic substances were found. A motion to suppress evidence seized was denied on August 21, 1972, with the court stating:

“Show arguments heard. Finding by the Court the affidavit for search warrant does show probable cause. The motion to suppress will be denied. I think this is a situation where the man had a perfect right to get in the automobile. It was sitting by the gas pump, blocking the filling station. He gets in and apparently sees some things that are suspicious. They are in plain view, the scales, cardboard box. The man says he is a diabetic. He says he doesn’t have any medicine; doesn’t need any medicine. But in view of what the police officer observed there I think he had a right to make some investigation on his own.”

After the trial in question defendant was found guilty by a jury on all four counts. Concurrent sentences were then entered on the three counts charging possession of controlled substances.

Defendant contends that the initial search of the car was illegal and would, therefore, not support a finding of probable cause for issuance of the search warrant. We do not agree. It is well established that "a search conducted without a warrant is per se unreasonable subject only to á few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347.) We believe one of these exceptions, the ■ emergency or exigent circumstances doctrine, to be clearly applicable here. In People v. Smith, 47 Ill.2d 161, 265 N.E.2d 139, the police noticed a man lying in- the hallway of a hotel. In the process of awakening him the officers discovered him ta be extremely disoriented and incoherent but without alcohol on his breath. In the process of searching the man, marijuana was found in his back pocket. Our supreme court upheld the search stating: - -

“Here the officers were summoned to investigate the circumtances involving a distressed person. 06 * For all they knew he may have been a diabetic in shock or a distressed cardiac patient. The officers were faced with an entirely different set of facts requiring different guide lines. This was an emergency situation where the welfare of the individual was at stake.” (47 Ill.2d 161, 163-64.) (Emphasis added.)

Such is the situation in the instant case. The officer was, as in Smith, called to investigate circumstances involving a distressed person who was likewise disoriented and incoherent. Furthermore, defendant here specifically told the officer that he was a diabetic, thus making this an even more compelling situation than Smith. Our reading of the whole record indicates that the officer was trying to help defendant in what he reasonably thought to be an emergency situation and was not trying to find incriminating evidence. Therefore, the court was correct in refusing to quash the search warrant.

At the conclusion of a recess in the trial, defense counsel informed the court that he had been told by defendant that he and his wife had overheard an individual say, “Hell, he’s only charged with possession. But you know damned well the guy’s pushing it, selling it.” Counsel stated that these comments were made within the hearing range of the jury. A hearing was then held outside the presence of the jury, and it was established that the remark had been made close to an open door of the jury room. The court then brought the jury back and asked each juror whether he or she had heard any conversations regarding the case. No juror admitted hearing the comments in question. The court then denied defendant’s motion for a mistrial.

Defendant contends that the court erred in refusing to grant his motion for a mistrial. We do not agree. Whether to grant or not to grant a mistrial lies within the sound discretion of the trial court. (People v. Chaffin, 49 Ill.2d 356, 274 N.E.2d 68.) Furthermore, it is well established that where the basis for the mistrial motion is communication between jurors and third parties, a defendant must prove actual prejudice. (People v. Georgev, 38 Ill.2d 165, 230 N.E.2d 851.) Since each jury member stated that he or she did not hear the remark in question, we do not see how defendant was prejudiced in any fashion. Therefore, the court clearly did not err in refusing to grant a mistrial.

Accordingly, for the reasons above stated the judgment of the circuit court of Champaign County is hereby affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE CRAVEN

text:
    Lillard Stines et al., Plaintiffs-Appellants, Cross-Appellees, v. Infant Vaughn et al., Defendants-Appellees, Cross-Appellants.
    (No. 12328;
    Fourth District
    September 19, 1974.

      Rehearing denied December 18, 1974.

    Kenneth J. Meyers, of Dukes, O’Rourke, Stewart & Meyers, Ltd., of Danville (John P. O’Rourke and John F. Martin, of counsel), for appellants.
    William J. Scott, Attorney General, of Chicago (Michael B. Weinstein and John D. Whitenack, Assistant Attorneys• General, of counsel), for appellee Richard S. Laymon.
    No appearance for appellee Gene Hughes.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

• The circuit court of Vermilion County denied the petition of Lillard Stines and Lorraine Stines to adopt Danny Vaughn. They appeal and the defendants-appellees attempt a cross-appeal from certain findings contained in the final order. The court filed a memorandum opinion/fhat was incorporated in the final order and found (1) the refusal of the chief probation officer and the Depártment of Children and Family Services to consent to the adoption by petitioners of Danny was arbitrary and capricious; (2) that the petitioners were proper persons to adopt Danny; and (3) that notwithstanding the above, and in view of the fact that Danny had-not resided with petitioners for approximately 4% years, it would not be in the best interests' of the child to grant the petition for adoption. The petitioners appeal from the trial court’s denial of their petition for adoption. The. respondents attempt to appeal from findings (1) and (2) of the memorandum opinion; as .to these.matters, we find they are not final, and appealable, therefore, respondents’ cross-appeal is dismissed.

The salient facts giving rise to this appeal are as follows. The petitioners filed an application with the Vermilion County probation office for: consideration as prospective adoptive parents. On May 4, 1965, Danny Vaughn was bom. His natural mother notified the probation office that she wished to place, the,child for adoption. The proper consent and surrender was secured from the natural mother. The petitioners were informed on May 9, by a Miss Blanche Hamilton, an agent of the probation office handling the child’s case, .that a baby boy was available for, them to adopt. Petitioners and their natural daughter, Karen, went to the hospital and picked up the infant. The Stmeses were accompaniéd home by Miss Hamilton. The, following day,. Miss .Hamilton returned to the petitioners’ home with Mr. Hughes, the chief probation officer.

On May II,- a petition was filed praying that the court find the infant in question a dependent child and grant to Hughes as chief probation officer custody and guardianship with the authority to consent to adoption. On May 12, Hughes officially turned the child ovér to petitioners for adoption. The May '11 .petition was. granted and the child was declared dependent on June 17-, 1965. The petitioners filed a. formal petition for adoption on October 18, 1965, and on that date the natural." mother filed her written consent and surrender for adoption, and entry of appearance. ' .... .......

After the Stmeses gáined physical custody of the child, the probation office maintained minimal contact with the petitioners and' the infant.' Other than the two initial home Visits made by representatives of; the probation office, the record discloses that the probation office only came into contact with the infant on ;two other occasions. Both of these occurred when Mrs. Stines brought the child to the probation office. Even respondents admit in th'eir brief that the scope and thoroughness-of the office’s preliminary investigation left much to be desired con-' sidering the sensitive nature of an adoption. The record also establishes’ that the probation office follow-up investigations as required by statute were patently inadequate.

While the intentions of the probation office were uncertain, those qf the Stineses’ were definite and clear. Once the child was in their heme, he was immediately integrated inte the family unit. The reccrd reveals that Mr. and Mrs. Stines treated Danny in a fashion commensurate with the treatment they accorded their own natural daughter Karen. The Stineses even reimbursed -the probation office for the medical expenses incurred as the result of Danny's birth. The petitioners were the sole means of Danny’s support.

In December 1967.,. the petitioners began to care for another child, Mary Ann Osborne. She was 3 years old at that time. The petitioners acted pursuant to the request of the parents and grandparents of the child. The child’s parents were having marital difficulties and could not properly care for her.: Petitioners secured a foster home license from the Department of Children- and Family Services. This license was issued after their home was inspected and found to be suitable. After receiving the license, agents-of the Department frequently visited the petitioners’ home. - ' '

During the time petitioners had physical custody of Danny, Mrs. Stines was extremely active' in community service organizations. She also attended Danville Junior College. In no instance does the record establish that either Danny or Mary Ann was neglected as a consequence of her activities. For example, on September 26, 1968, Yolande Brooks, an agent of the Department, which had -assumed the legal guardianship of Mary Ann, called upon; Mrs. Stines at the Danville Junior College in order to. discuss -Mary-Ann’s well-being. Brooks visited the Junior College nursery and observed both Mary Ann and Danny. She noticed nothing unusual about either child and found them adequately clothed and fed.

It is unco'ntroverted, that during 1968 Mrs. Stines began to experience anxieties that manifested .themselves in slightly erratic conduct. On : October 9, 1968, Mrs. Stines - was admitted-to the Peoria State Hospital by Mr. Stines upon the.recommendation of the Danville Mental Health Clinic and the Stineses’ minister. Mrs. Stines remained, at the hospital for -10 days and was- then discharged. The Danville Mental Health Clinic informed the. Department of Children and Family Services that Mrs. Stines had been hospitalized, and pursuant to this notification, Brooks and her ■ supervisor, Margaret Cunningham, conferred with Hughes and Judge James ■ Robinson concerning the status of Mary Ann and Danny. Hughes purportedly instructed Cunningham to take physical custody' of - Danny when the Department -picked up Mary Ann.‘Hughes also filed a motion to change custody and guardianship of Danny from the probation office to the Department of Children and Family Services. The motion was subsequently aUowed. The Stmeses were not given notice of the change of custody.

On the morning of October 10, 1968, Mr. Stines was informed by the Department of Children and Family Services that he must surrender the children at the court house that very afternoon, which he did. According to Mr. Stines, he was told by one of the Department representatives that he would be informed where the children were to be taken. He never was.

As pointed out in the trial court’s memorandum opinion, “No inquiry was made by the Department as to the reason for the hospitalization of Mrs. Stines and no attempt was made to ascertain whether the children could be properly cared for by Mr. Stines during Mrs. Stines’ absence.” The trial court further observed that neither the Department nor the probation office exerted any real effort in attempting to ascertain the extent of Mrs. Stines’ infirmity. After Mrs. Stines was released from the hospital, the Department informed the petitioners that they would not be able to regain custody of the children. Later in the course of this litigation, Cunningham testified that “I said as far as I was concerned, anyone who had been mentally ill I would not recommend for adoption, # Moreover, she noted that when removing Danny from the Stmeses’ home, it would not make any difference to her what Mrs. Stines’ eventual condition was going to be. We note with irony that this statement was made in the context of the fact that Danny had been residing with the petitioners for approximately 3 years and both Cuningham and Brooks testified that a child should not be removed from one home to another except for compelling reasons.

Both children were placed in a temporary foster home on October 10, 1968, and Danny remained there until June 20, 1969. During January of 1969, the Stineses again contacted the Department in order to see if they could regain custody of Danny, but to no avail. Mrs. Stines’ psychiatrist wrote Cunningham advising that in his opinion Mrs. Stines should be aUowed to be an adoptive parent. He stated that “any alleged mistreatment of the children staying with her occurred during her illness and is entirely contrary to her normal character.” Notwithstanding this letter, the Department persisted in its refusal to reunite the petitioners with Danny.

On June 30, 1969, Danny was placed for adoption in another home and adoption proceedings were commenced; however, those proceedings have been suspended pending the outcome of this litigation. On July 10, 1969, the petitioners filed a motion to set aside the change of custody and to return physical custody to them. Accompanying that motion was a motion to amend the petition for adoption and to stay further proceedings. On September 2, 1969, after a hearing on the motion, Judge Robinson denied the motion to set aside the change of custody on the grounds that the petitioners were not entitled to notice of the original proceedings to change custody, from one agency to another, or notice of the hearing thereon. The corut also denied their motion to stay proceedings. The court did permit the Stmeses to file an amended petition for adoption which was duly filed on September 23, 1969.

Judge Robinson disqualified himself from the cause and on January 5, 1970, the case was assigned to Judge Wright. After considerable delay, numerous pleadings and changes of personnel in the State’s attorney’s office, a hearing on the petition for adoption was held on December 10, 11, 1970, and January 14, 1971. Additional testimony was taken on September 7, 8 and 19, 1972. Judge Wright filed his memorandum opinion on April 3, 1973, and his final order was filed on April 16, 1973.

Respondents contend that the trial court did not have jurisdiction to consider the Stines es’ adoption petition, for the petition was allegedly deficient in that the appropriate agency refused to consent to the adoption of the infant Vaughn. It is submitted that since adoption is a creature of statute and in derogation of common law, the Adoption Act must be strictly construed. Respondents urge that all the allegations required by the statute must appear on the face of the adoption petition in order to vest the trial court with jurisdiction. One of these necessary allegations is that either the natural parents or the appropriate adopting agency consent to the adoption. If consent to the adoption is not present, respondents argue that the trial court lacked jurisdiction because this requirement is jurisdictional.

In In re Estate of Wolfner, 44 Ill.App.2d 77, 194 N.E.2d 1, the court discussed the validity of an adoption petition which failed to allege on its face that the natural mother had consented to the adoption of her child. The court noted that an adoption proceedings is statutory and jurisdiction of the subject matter and of the person is a prerequisite to the validity of a decree of adoption. The court ruled that even if a jurisdictional fact is not alleged in the petition, the proceedings are not null and void if that fact appears elsewhere in the proceedings. The establishment of this jurisdictional fact, sometime during the course of the proceedings, amounted to substantial compliance with the essentials of the Adoption Act. It is evident that this interpretation of the Adoption Act is not contrary to the General Assembly’s legislative intent.

We accept the reasoning of the Wolfner court and find that the substantial compliance is sufficient. The fact that petitioners’ petition for adoption: in' this' case "failed to. allege that. the appropriate. agency consented" to the 'adoption of "infant. Vaughn did. not deprive the trial court of its jurisdiction.

Respondents next suggest that since consent or a statutorily sanctioned éxcuse thereof is mandatory, it cannot be waived by the trial court. Thus, even under the substantial compliance rationale, the agency must ultimately consent to the adoption. Essentially, the import of respondents’ argument is that an adoption agency can deprive a court of its jurisdiction to review a. petition for adoption by refusing to give its consent. .. -.

The language of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, f 9.1-1: et seq.) relevant herein is found .in sections 5, 8 and 15. Section 5 states in. part:

. “B. A petition to adopt.a child other than a related child'shall state: _ .

e # *

(j) That the person or agency, having authority tó consént under Section 8 of this Act, has consented, or has indicated willingness to consent, to the adoption of the child by the petitioners, or that the person having authority to consent is an unfit person and the ground therefor, or that no consent is. required under J..." paragraph (f) of Section 8 of this Act; # * (Ill. Rev. Stat. 1971, ch. 4 19.1--5B (j).)

Section 8 states in part: ...

■ “Except as hereinafter provided in this Section, consents shall be required in all cases, unless the person whose consent would . otherwise be required shall be found by the court to be an unfit person as defined in Section 1 of this Act. Where consents are required in the case of an adoption of a child, the consents of the following persons shall be sufficient:
" * # #
.(c) An Agency, if the child has been surrendered for adoption to such agency; or.
(d): Any person or agency having legal custody of a child by court order if the parental rights of the parents! have been judicially terminated, and the court having jurisdiction of the guardianship of the child has authorized the consent to the adoption; * * (Ill. Rev. Stat. 1971, ch. 4, jf 9.1-8 (c) (d).)" .

Section 15 of the Adoption Act states:

“The welfare of the child shall be the prime consideration in all adoption proceedings!” (Ill. Rev. Stat. 1971, ch. 4, f 9.1-15.) (Emphasis supplied.)

We note parenthetically that since this cause has been adjudicáted below, the General Assembly has amended the Adoption Act and reinforced the public policy enunciated in section 15 by stating in section 20(a):

“The best interests and welfare of the person to be adopted shall be of paramount consideration in the construction and interpretation of this Act.” (Ill. Rev. Stat. 1973, ch. 4, f 9.1-20a.) (Emphasis supplied.)

This section underscores the sound and prudent public policy that has always been the bedrock of the Adoption Act.

. Respondents cite Greco v. Chicago Foundlings Home, 38 Ill.2d 289, 230 N.E.2d 865, as being dispositive of this issue. Respondents assert that the court in Greco held that consent is a statutory requisite to adoption. The court stated, “The statute provides that a child does not become available until the agency to which it has been surrendered gives its consent.” However, the statement just cited was not germane to the narrow holding of the court. In fact, the court unequivocally declined to examine the propriety of the agency’s alleged arbitrary and capricious refusal to consent, finding that issue irrelevant. The court stated, “It is unnecessary to a decision in this case to pursue this line of inquiry.” (38 Ill.2d at 293.) In making this statement, the court was aware that the purpose of the petition therein was. not a request for adoption but rather a habeas corpus action brought by foster parents for the sole legal purpose of reacquiring custody of their foster child.

The case at bar is not a habeas corpus action but an adoption proceeding. The purpose of this petition is not to simply reacquire physical custody, but rather to determine tire permanent de facto and de jure custody. The critical issue in a habeas corpus action is whether the petitioner can show a prima facie legal right to custody. In an adoption proceeding, the issues are exceedingly broader. Whereas the supreme court in Greco refused to examine the consequences of an agency’s failure to consent to an adoption proceeding, we must.

In In re Haun, 31 Ohio App.2d 63, 286 N.E.2d 478, the court inter-. preted the Ohio adoption statute, that is virtually identical to our Adoption Act, in the context of a case that is factually similar to this case. Therein the petitioners who were foster parents petitioned for the adoption of a 3-year-old child. The Children Services which had permanent custody of the child opposed the petition and refused to grant consent to the adoption. At the outset of the proceedings, the agency filed a motion to dismiss. The grounds for the motion was that the trial court lacked jurisdiction to proceed because section 3107.06 of the Ohio Revised Code mandated that consent of a certified agency, having permanent custody of the child, is a condition precedent to any adoption, and that this consent was not forthcoming (see Ohio Rev. Code 1969, §§ 3107.03 and 3107.06). The trial court ruled that exclusive jurisdiction of adoption proceedings reside in the judiciary and the law never envisaged nor contemplated frustration of the adoption process by withholding of consent on the part of an individual or an agency whether public or semi-public. In re Haun, 58 Ohio Op.2d 336, 277 N.E. 2d 258.

On appeal, the appellate court affirmed the trial court. It stated:

“The trial court had held that the refusal of consent, apparently without more, raised the question of the best interests of the child for adjudication. We find it unnecessary to go so far to support the trial court’s decision. It is enough, in our view, to simply subject the withholding of agency consent to judicial scrutiny to determine whether the agency is acting unreasonably, arbitrarily, or capriciously.” (286 N.E.2d 478, 480.)

The court then addressed the issue of whether agency consent is mandatory and jurisdictional under the statute. The court found that:

* * [T]he requirement of agency consent was not intended by the legislature to give an unnatural parent an arbitrary, unreasonable or capricious power to defeat judicial review and, coincidentally, impede, in a specific case as in this instance, the objectives of securing qualified adoptive parents and promoting the best interests of a child available for adoption. Moreover, we find that refusal of consent even when it is not arbitrary, unreasonable or capricious does not deprive the Probate Division, Common Pleas Court, of jurisdiction. To the degree that it is reasonable, it does add an element for consideration in the probate court’s determination of the qualification of the adoptive parents and the best interests of the child.” (286 N.E.2d 478, 481.)

We find the reasoning of the Haun court persuasive. Also see State ex rel. Portage County Welfare Dept. v. Summers, 38 Ohio St.2d 144, 311 N.E.2d 6, wherein the Ohio Supreme Court essentially adopted the reasoning found in Haun. The court held that the requirement of the adoption statute that makes consent mandatory cannot operate to divest the trial court of its jurisdiction to fully hear and determine an adoption proceeding.

The record herein establishes that the Adoption Act was substantially complied with when the trial court explored the reasonableness of the agency’s refusal in determining what would serve the best interests of the child involved. The trial court was aware of the technical defect in the petition, concerning the lack of agency consent. The court inquired into the circumstances surrounding the agency’s refusal to consent and strived to determine the reasonableness thereof. It made specific findings dealing with this matter and found that the agency had acted unreasonably. The thrust of the trial court’s finding was that this entire litigation resulted directly from the abject failure of respondents to appreciate the sensitive nature of their duties and responsibilities. We must agree.

We also reject respondents’ contention that an agency can deprive a court of its jurisdiction to review an adoption petition by merely refusing to give its consent. To accept this contention would circumvent the legitimate ends of the Adoption Act.

Lastly, petitioners urge that the trial court’s denial of their petition for adoption was an abuse of discretion and against the manifest weight of the evidence. The petitioners are correct when asserting that the standard for review in cases such as the one at bar is whether the findings of the trial court were contrary to the manifest weight of the evidence. Townsend v. Curtis, 15 Ill.App.3d 209, 303 N.E.2d 566.

When the trial court reviews facts in making its final determination, the welfare of the child should be the prime consideration in all adoption proceedings. (In re Petition to Adopt Cech, 8 Ill.App.3d 642, 291 N.E.2d 21.) In this case, since the natural parents are not contestants, the welfare of the child was the trial court’s only concern.

The determining fact the trial court relied upon in denying the petition was that Danny had been separated from petitioners for over 4% years. He had established a new lifestyle with his present foster parents, and looked upon them as his natural parents. The court found that Danny’s memories and recollections of his stay in petitioners’ home were extremely vague. The court took specific note of testimony given by Dr. Eisen, a clinical psychologist, who contended that Danny was beginning to make adjustments to his present home situation although the adjustments were marginal. Dr. Eisen indicated that a removal from his current environment would abort any positive adjustments and could result in severe emotional disturbance. The trial court’s memorandum opinion points out that because of the favorable adjustment in his present foster home and the length of time that he had been out of petitioners’ home, it was the opinion of the court that it would not serve Danny’s best interests to grant the adoption petition. Upon this record, the trial corut’s ruling was not against the manifest weight of the evidence. Accordingly, the judgment must be and is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.