author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY B. PICKENS, Defendant-Appellant.
    Fourth District
    No. 4—91—0566
    Opinion filed April 8, 1992.
    Daniel D. Yuhas and Charles L. Jones, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On December 26, 1990, an information was filed in the circuit court of Macon County charging defendant Jeffrey B. Pickens in three counts. Count I charged that on or about December 14, 1990, he unlawfully possessed a substance containing more than five grams but not more than 15 grams of cocaine with intent to deliver it in violation of section 401(c)(2) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(c)(2) (text as amended by Pub. Acts 86-266, §1, eff. Jan. 1, 1990 (1989 Ill. Laws 1893, 1895); 86 — 442, §1, eff. Jan. 1, 1990 (1989 Ill. Laws 2681, 2684))) and section 5 — 5—3(c)(2)(D) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3(c)(2)(D)). Count II charged defendant with merely violating section 401(c)(2) of the Act by unlawful possession of cocaine with intent to deliver and alleged the weight of the cocaine was one or more grams and less than 15 grams. (This charge was later dismissed on the State’s motion.) Count III charged defendant with the included offense of mere possession of less than 15 grams of cocaine in violation of section 402(c) of the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(c) (text as amended by Pub. Acts 86— 266, §1, eff. Jan. 1, 1990 (1989 Ill. Laws 1893, 1898-99); 86-442, §1, eff. Jan. 1, 1990 (1989 Ill. Laws 2681, 2687))).

After a trial by jury, the court entered judgment on May 30, 1991, on a verdict finding defendant guilty of count I. On July 1, 1991, the court sentenced defendant to four years’ imprisonment and a street value fine of $503. The court also assessed a laboratory fee against defendant of $50 and granted him seven days’ credit upon his sentence for time previously served.

On appeal, defendant’s major claim of error is that the State failed, as a matter of law, to prove beyond a reasonable doubt that any cocaine he possessed weighed in excess of five grams. The significance of the weight of the cocaine is that by the terms of section 5— 5 — 3(c)(2)(D) of the Code, when the amount of cocaine involved weighs in excess of five grams, a person convicted of violating section 401(c)(2) of the Act cannot receive a sentence of probation, conditional discharge, or periodic imprisonment. The five-gram factor is the difference between count I and count II. Defendant maintains we should reduce his conviction to that for count III, the included offense of possession, and remand the case for resentencing. He also asserts that in any event, he is entitled to a 10-day rather than a 7-day credit for time served prior to sentencing and a $5-per-day credit on his fine for that time served.

Although the reasonable doubt issue is an interesting one, we hold the proof of guilt of the greater offense was sufficient. However, we agree with defendant as to his claims for additional credit for time served and as to his street-value fine.

As the sole question in regard to the sufficiency of the proof concerns the weight of cocaine found in defendant’s possession, we need discuss only the proof on that issue. All of that evidence came from the testimony of Mark Paiva, a drug chemist for the Illinois State Police. He testified at trial as follows: (1) he examined People’s exhibit No. 1 (previously identified as the substance alleged to have been in defendant’s possession) for the presence of controlled substances; (2) he first weighed the plastic bag containing 17 smaller bags and got a gross weight of 6.4 grams; (3) he then proceeded to weigh the content of each smaller bag individually; (4) he weighed the content of each of the small bags using a top-loading analytical balance, by placing a small plastic weight boat on top of the balance, resetting the scale to zero, and placing the powdery substance in the weight boat; and (5) he added the weight of the contents of each of the 17 bags and obtained an aggregate weight of 5.03 grams of the 17 bags together, and in his opinion, the aggregate weight of those bags was 5.03 grams.

On cross-examination, Paiva stated the following: (1) by the manufacturer’s specifications the scale he used to weigh the substance had a plus or minus margin of error of .005 grams; (2) there is no way of determining whether the scale was erring on the low or high side, or was perfectly accurate; (3) the scale weighs to the thousandth of a gram, but automatically rounds up to the hundredth of a gram for easier readability; and (4) the margin of error was always present. Paiva also testified on cross-examination that the scale does not give a weight to the third figure after the decimal point but rather registers to the nearest figure second from the decimal point. The testimony was not clear as to whether this process creates the .005-gram margin of error concerning which he had previously explained.

On redirect examination, the defense asked Paiva if any way existed by which he could determine whether “the scales were reading the deviant amounts of .005 grams.” Paiva responded that no way existed to make that determination by an individual weighing but he said “over a period of time [he thought] it would pick up a bias if it was, if it was terribly high or terribly low.” He then stated “we have 3 balances in the laboratory” and he sometimes used one and sometimes another. He stated he thought he “would notice the difference if there was something that was continuously off.” Paiva then explained the steps he took to check the accuracy of the scales. However, nothing in his testimony negated the existence of a .005-gram margin of error which was applicable to each weighing.

The State does not dispute that it had the burden of proving beyond a reasonable doubt that the cocaine possessed by defendant had a weight in excess of five grams in order to convict defendant under count I. This requirement is similar to the duty on the State in People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490, where proof beyond a reasonable doubt of a prior conviction for theft was held to be necessary to enhance a subsequent theft conviction to a felony. The enactment of section 111 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111—3(c)), making the prior conviction no longer an element of an offense enhanced, thereby changes the rule of Hayes but does not negate the analogy to the law at the time of Hayes. Similarly, in People v. Speed (1982), 106 Ill. App. 3d 890, 436 N.E.2d 712, proof of the weight of cannabis possessed by an accused was deemed to be insufficient to meet the reasonable doubt standard and a conviction for felony possession of more than 30 grams but not more than 500 grams of cannabis (Ill. Rev. Stat. 1979, ch. 56½, par. 704(d)) was reduced on appeal to a misdemeanor.

When a trier of fact has found an accused guilty of an offense, a reviewing court will not set that finding aside as long as “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276, cert. denied (1990), 498 U.S. 881, 112 L. Ed. 2d 174, 111 S. Ct. 215.) The determination of the credibility of the witness is the sole responsibility of the trier of fact except under extremely rare circumstances not present here. People v. Phillips (1989), 127 Ill. 2d 499, 514, 538 N.E.2d 500, 505, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290.

Paiva testified he made 17 separate weighings and obtained a total weight of 5.03 grams of cocaine and each weighing was subject to a margin of error of .005 gram. The evidence is not entirely clear as to whether the margin of error arose because the scale registered only to two figures past the decimal point or because of other inherent inaccuracies. In any event, giving full credibility to Paiva’s testimony, as we must, we are still faced with the inherent fallibility of the scale which is such that if several of the weighings were overstated to the margin of error and none of the others were understated, the cocaine did not weigh five grams. Putting it another way, if all of the readings overstated the weight to 40% of the margin of error, the cocaine would not actually have weighed more than five grams.

The task of determining whether a reasonable trier of fact could have found beyond a reasonable doubt that the cocaine weighed over five grams is entirely dependent upon the law of averages and some conception of how likely a result must be to be proved beyond a reasonable doubt. No helpful case has been called to our attention on the latter point. The issue involved would seem to arise mostly when proof of a measurement is necessary to prove an offense. The two most likely examples are the determining of the weight of contraband and the determination of the percentage of alcohol in human blood or breath.

Defendant relies on the State v. Bjornsen (1978), 201 Neb. 709, 271 N.W.2d 839, People v. Campos (1982), 138 Cal. App. 3d Supp. 1, 188 Cal. Rptr. 366, and State v. Boehmer (1980), 1 Haw. App. 44, 613 P.2d 916, all of which concern tests to determine alcohol content in the blood of a motorist by the administration of a single test the results of which would show an insufficient amount of alcohol if the recognized margin of error would have been applied most favorably to the accused. In Bjornsen, a conviction for driving while having a .10% blood-alcohol level was reversed when the sole evidence of guilt was the result of a test which did not show a .10% content after reducing the test result by the margin of error. Under similar circumstances in Campos, a trial court committed reversible error in instructing the jury as to a statutory presumption arising from evidence of a .10% content of alcohol in the blood. In Boehmer, in consolidated cases, trial courts committed reversible error at bench trials in relying upon a similar statutory presumption when the test results in evidence, when reduced by the margin of error, failed to equal the required .10%.

Unlike in the above cases, here a series of scientific measurements were made. No one error would have been prejudicial to the defense. In fact, at least six of the readings would have to have been overweight to the full amount of the margin of error and none of the other weighings given readings too low in order for the cocaine not to have weighed in excess of five grams. No evidence was introduced explaining how to calculate the odds as to whether the scales used did actually overweigh the cocaine by nearly .03 grams. Nonetheless, the evidence did show that an unusual sequence of mismeasurements would have had to occur for sufficient overweighing to have taken place. We hold that a reasonable jury could find the likelihood of an overweighing by .03 grams was too remote to create a reasonable doubt as to whether the cocaine’s total weight exceeded five grams.

The parties do not dispute that defendant was entitled to credit against his sentence of imprisonment for five days consisting of two days before trial and three days after conviction before defendant posted an additional bond and was released. The dispute concerns a period of time thereafter from June 27, 1991, when he was taken into custody after he failed to appear for further hearing. He then remained in custody for an additional five days before sentencing. A motion was made by the State to revoke his bond but no proceedings for contempt were initiated. The State maintains defendant was, in effect, being held for contempt in which case he would not be entitled to credit for this period of time. (People v. Totten (1987), 118 Ill. 2d 124, 514 N.E.2d 959.) However, defendant was neither charged with contempt nor found to be in contempt. We conclude he was entitled to credit for those additional five days.

The court imposed a street-value fine upon the basis of the judge’s experienced belief that the street value of the cocaine was $100 per gram but the sole evidence before the court was the testimony of Decatur police narcotics agent Edward Root that each of the 17 packets had a street value of $25. The fine must be based on the evidence and reduced at the outset to the sum of $425. The State agrees that defendant is entitled to a reduction of the fine at the rate of $5 per day for time served prior to sentence. As we have determined that defendant is entitled to 10 days of such credit, the street-value fine must be reduced by an additional $50 to the sum of $375.

Accordingly, we affirm the conviction as to count I and as to the sentence imposed except that we remand to the circuit court of Macon County with directions that the time credit upon defendant’s sentence of incarceration be increased to 10 days and his street fine be reduced to the sum of $375.

Affirmed and remanded with directions.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE ex rel. JUDITH WRAY, for the use of the Department of Public Aid, Plaintiff-Appellant, v. RICHARD BRASSARD, Defendant-Appellee.
    Fourth District
    No. 4—91—0281
    Opinion filed March 19, 1992.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Mark T. Petty, of Areola, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

On July 11, 1975, a decree of divorce was granted in the circuit court of Douglas County to Judith Brassard (now Wray) from defendant Richard Brassard. Custody of four minor children was awarded to Judith. Defendant was ordered to pay $60 per week as child support through the circuit clerk for the children, to begin July 21, 1975. After the entry of this decree, defendant moved to Arkansas; in 1980, he moved to Alabama; in 1983, he returned to Illinois. From July 21, 1975, to September 1989, defendant made no child support payments to the circuit clerk.

On July 20, 1989, the Illinois Department of Public Aid filed a petition for adjudication of contempt on behalf of Judith, asking that defendant be held in contempt of court for failure to comply with the divorce decree as to payment of child support. The petition sought a child support arrearage of over $44,000, plus attorney fees, costs, continued support, and sanctions. At the time of filing of the petition, three of the four children had attained the age of majority. At the initial hearing on the petition, defendant appeared pro se. He admitted he had been employed in various jobs since 1975 and that he had not paid any child support payments as ordered. At the conclusion of the hearing, the trial court found a child support arrearage of $44,340. It also found that defendant had the financial ability to pay $32,580 of that arrearage and that he was in indirect civil contempt of court. An order of withholding was entered for payment of current support. The question of sanctions was continued to a later hearing date.

Defendant then hired an attorney and filed a motion to vacate the judgment. That motion alleged that defendant had a meritorious defense to the petition, based upon the statute of limitations. The trial court allowed the motion and vacated the judgment.

Defendant filed a motion to dismiss the petition, alleging the five-year statute of limitations as set forth in section 13 — 205 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13—205) barred the collection of that portion of the arrearage accrued prior to July 20, 1984. The motion also alleged that no judgment based upon the July 11, 1975, decree could be entered, when that decree had not been revived within seven years of its entry, pursuant to section 6 of “An Act in regard to judgments ***” (Ill. Rev. Stat. 1981, ch. 77, par. 6) or section 2—1601 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—1601).

The trial court denied this motion and set the petition for hearing. Defendant filed a response to the petition in which he set forth affirmative defenses, alleging alternatively that payments accrued prior to July 20, 1984, were barred by the 5-year statute of limitations, that the 10-year statute of limitations (Ill. Rev. Stat. 1987, ch. 110, par. 13—206) barred collection of payments accrued prior to July 20, 1979, and that collection of all sums was barred due because the 1975 decree had not been revived within seven years. On July 9, 1990, after hearings and receiving arguments of counsel, the trial court found the statute of limitations was tolled while defendant resided outside the State of Illinois. It determined that when he returned to Illinois in 1983, the five-year statute of limitations began to run, expiring in 1988. The court found that collection of all support payments which had accrued prior to July 20, 1984, was barred by that statute. The court further found that the five-year limitations period would begin to run on each installment as it came due, thus barring collection of all installments which had accrued more than five years prior to the commencement of the action. A written order was required to be prepared, and the written order was entered on July 24, 1990. In the order, the circuit clerk was ordered to recompute defendant’s arrearage. The hearing on the petition was continued to the next month. Subsequently, that hearing was continued several times.

Plaintiff filed a motion to reconsider, alleging that the 1975 divorce decree was a money judgment and that the 20-year statute of limitations contained in section 13 — 218 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—218) applied, thus making all past-due payments subject to collection. This motion was denied in October 1990. Thereafter, plaintiff filed a motion asking the trial court to enter judgment in favor of Judith and against defendant for child support arrearage and to order payments on the arrearage.

Finally, at a hearing on February 14, 1991, defendant’s arrearage was established at $16,140. He was ordered to continue paying $60 per week in current support payments for the remaining minor child and $35 per week on the arrearage. He was further ordered to continue paying $95 per week on the arrearage once the minor child attained majority. The court directed a written order to be prepared, and it was entered on March 13, 1991. At plaintiff’s request, the trial court made the finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal of the order. No order was entered as to possible sanctions against defendant for the contempt finding made earlier by the trial court, and the written order did not provide for a continued hearing for that purpose. Plaintiff now appeals, claiming the trial court erred as a matter of law in applying the five-year statute of limitations to the arrearage accrued prior to July 20,1984.

Before we reach the merits of this appeal, we must decide a jurisdictional question which has been raised and briefed by defendant. Plaintiff’s notice of appeal states the appeal is from orders of the trial court entered on July 9, 1990, October 26, 1990, and March 13, 1991. Defendant maintains we should dismiss this appeal as not being timely filed. He contends this is really an appeal of the trial court’s order of July 24, 1990, in which it found that collection of all child support arrearage accrued prior to July 20, 1984, was barred. At this point, defendant says that the court made a final determination of the monetary issues involved in the case. He points out that plaintiff filed a motion for reconsideration of that order which was denied on October 26, 1990. He believes plaintiff should have filed the notice of appeal of the July 24, 1990, order by August 23, 1990, and certainly no later than 30 days after the motion for reconsideration was denied. He points out that the court’s order of March 13, 1991, did not refer to its July 24, 1990, order finding that collection of the arrearage accrued prior to July 20, 1984, was barred. In fact, it recites an agreement between the parties as to the amount of the arrearage ($16,140) on which the judgment would be entered. However, we note the order does make reference to the fact that the judgment amount constitutes an arrearage accumulated since July 20, 1984. Plaintiff’s petition alleged an arrearage accrued from 1975, and the court initially found this allegation to be true. Therefore, the March 13, 1991, order implicitly referenced the prior order barring collection of some of the arrearage.

We find that plaintiff’s appeal is timely filed. While the trial court’s order of July 24, 1990, determined that some of defendant’s arrearage was not subject to collection, it did not make any finding as to the amount of the arrearage. Nor did it make any findings as to the issue of contempt. We note there was no Rule 304(a) finding that would have allowed plaintiff to seek an appeal at that point. Absent such a finding, the order was clearly not appealable since it did not dispose of all of plaintiff’s claims against defendant. Further, the order contained an explicit direction to the circuit clerk to recompute defendant’s arrearage, which was not completed until several months later. Therefore, an appeal of the July 24, 1990, order (or of the denial of plaintiff’s motion for reconsideration) would have been premature until all issues were finally decided or the court had made a Rule 304(a) finding. Thus, we find this appeal is properly before us.

Initially, we note one of the defenses argued by defendant at the trial level was that plaintiff was barred from recovering any arrearage because it had failed to first seek revival of the 1975 divorce decree. (See Ill. Rev. Stat. 1987, ch. 110, par. 12—108(a).) The trial court made no findings on this issue in its July 9, 1990, letter to counsel advising them of its decision or in the written order of July 24, 1990. However, by finding that plaintiff could collect that part of the arrearage accrued within five years immediately prior to the filing of the petition, the trial court implicitly found against defendant on this affirmative defense.

In this appeal, defendant has included argument in his brief directed to this defense. Because we are remanding to the trial court, we emphasize that section 13 — 218 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13—218) allows for revival of judgments within 20 years. Section 2 — 1601 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—1601) abolishes scire facias and allows for revival by a petition filed in the case in which the original judgment was entered. We find the plaintiff’s current pleadings seeking the payments originally ordered by the 1975 judgment were sufficient to effect revival. (See also 23A Ill. L. & Prac. Judgments §474 (1979).) However, defendant has not filed a cross-appeal claiming error as to the trial court’s adverse decision on this defense, as required by Supreme Court Rule 303(a)(3) (134 Ill. 2d R. 303(a)(3)). In the absence of a cross-appeal, appellee will not be permitted to challenge or to ask the reviewing court to modify a portion of the trial court’s order and the reviewing court is confined to a consideration of the errors raised by appellant. National Bank v. City of Lexington (1985), 138 Ill. App. 3d 805, 809, 486 N.E.2d 967, 970.

We turn now to the claim of error raised by plaintiff. Plaintiff argues the 20-year statute of limitations applicable to judgments contained in section 13 — 218 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13—218) applies to the instant divorce decree. Plaintiff points out that Illinois courts have consistently held that a divorce decree ordering payment of alimony (now maintenance) and child support is a money judgment. Thus, plaintiff argues that it had 20 years from the date of the divorce decree in which to file its petition and, having done so, was entitled to a judgment for all the child support arrearage, not just the arrearage accrued within the preceding five years. Defendant argues the trial court was correct in applying a five-year statute of limitations to plaintiff’s petition. He also contends that plaintiff must seek revival of the 1975 decree and that its petition does not contain a prayer for this relief.

In the trial court’s decision issued on July 9, 1990 (later embodied in the July 24, 1990, written order), it found that all arrearage amounts older than five years were barred. In explaining its decision, the trial court cited as authority the cases of Haughton v. Haughton (1979), 76 Ill. 2d 439, 394 N.E.2d 385, rev’g Ball v. Haughton (1978), 60 Ill. App. 3d 562, 377 N.E.2d 78, and Light v. Light (1957), 12 Ill. 2d 502, 147 N.E.2d 34. In Haughton the petitioner, mother of twin daughters born out of wedlock in 1948, filed an action in California in which respondent was determined to be the father and was ordered to pay child support. He made only one payment. Shortly thereafter, he moved to New York. In 1958, petitioner was successful in registering the California judgment in New York, and respondent was ordered to pay child support. In November 1970, respondent moved to Illinois. In May 1975, petitioner filed an action in Illinois seeking (1) in count I, the registration and enforcement of the New York judgment under the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1975, ch. 68, par. 101); and (2) in count II, the registration and enforcement of the California judgment under the Uniform Enforcement of Foreign Judgments Act (Foreign Judgments Act) (Ill. Rev. Stat. 1975, ch. 77, par. 88). Respondent moved to dismiss, alleging (as to count I) that since the twins had reached the age of majority on July 3, 1969, his obligation of support had ended, that the statute upon which petitioner relied did not become effective until after this date, and that the statute did not provide for collection of arrearage. He moved to dismiss count II on the ground that the claim was barred by the five-year statute of limitations. The trial court granted the motion as to count I, but denied it as to count II. After a hearing, the trial court awarded petitioner a judgment for $22,816.06. Respondent appealed and petitioner cross-appealed.

In Ball, the appellate court held the five-year statute of limitations (Ill. Rev. Stat. 1975, ch. 77, par. 89; ch. 83, par. 16) barred the enforcement of both judgments. Under the statute then in effect (Ill. Rev. Stat. 1975, ch. 83, par. 19), the limitations period was not tolled by nonresidence of the defendant if both parties were nonresidents of Illinois at the time the cause of action accrued. Since both petitioner and respondent were nonresidents, the tolling provisions did not apply. Since the last installment of respondent’s support obligation had accrued more than five years prior to commencement of petitioner’s suit, it was held that she could not collect the arrearage. (Ball, 60 Ill. App. 3d at 567-69, 377 N.E.2d at 83-85.) In reversing the appellate court, the supreme court in Haughton found the tolling statute unconstitutional as applied to nonresidents of Illinois. Having held the limitations period was tolled during respondent’s absence from Illinois, the court assumed, but did not decide, that even if the five-year limitation period applied to the registration of foreign judgments, petitioner was within that time period in filing her petition. The court stated that because petitioner had a money judgment which was due in periodic installments, the statute of limitations began to run on each installment as it became due. (Haughton, 76 Ill. 2d at 444-47, 394 N.E.2d at 387-89.) In the instant case, the trial court seemed to place emphasis on this statement in its decision. The statement suggests the petitioner in Haughton would not be entitled to any judgment for installments more than five years old. However, the Haughton court ordered a judgment for the entire amount claimed, which included installments accrued and unpaid from January 15, 1950, through July 3, 1969. We must therefore regard this statement as dicta and unnecessary to the decision in the Haughton case.

The trial court also cited the Light case as support for its decision. As with the Haughton case, the supreme court dealt in Light with the question of the statute of limitations in a foreign-judgment situation. In that case, plaintiff filed a petition seeking registration of a foreign divorce decree, which ordered defendant to pay child support and alimony. The Illinois trial court entered a judgment in plaintiff’s favor, and defendant appealed. One of defendant’s contentions was that registration of the judgment was barred by the five-year statute of limitations on the registration of foreign judgments. (Ill. Rev. Stat. 1957, ch. 83, par. 16.) The court noted this limitation had been incorporated (Ill. Rev. Stat. 1957, ch. 77, par. 89) into the Foreign Judgments Act. The court then stated the statute of limitations begins to run for each periodic installment of money when it becomes due, and the petition in that case had sought recovery only of those installments accruing within the preceding five years. The court found no violation of the limitation statute. Light, 12 Ill. 2d at 506, 147 N.E.2d at 37.

We find the Haughton and Light cases are inapplicable to the factual situation in the instant case. Both those cases dealt specifically with the attempted registration of foreign judgments in Illinois. The Foreign Judgments Act which was in effect in both cases specifically incorporated therein the five-year limitations period. (See Ill. Rev. Stat. 1957, ch. 77, par. 89; ch. 83, par. 16; see also Ill. Rev. Stat. 1975, ch. 77, par. 89; ch. 83, par. 16.) Here, we have an Illinois judgment sought to be enforced by plaintiff.

We hold the 20-year limitation on enforcement of judgments contained in section 13 — 218 of the Code is applicable. Therefore, plaintiff was not limited in its collection of defendant’s child support arrearage to those amounts accrued during the five-year period immediately preceding the filing of the petition. In this conclusion, we are in accord with the decisions of the First District Appellate Court in Atwater v. Atwater (1974), 18 Ill. App. 3d 202, 208, 309 N.E.2d 632, 637, and In re Marriage of Yakubec (1987), 154 Ill. App. 3d 540, 544, 507 N.E.2d 117, 120, as cited here by plaintiff. In both Atwater and Yakubec, plaintiffs sought enforcement of child support and alimony or maintenance provisions of divorce decrees. In both cases, the defendants contended the actions were barred by the five-year statute of limitations. The appellate courts disagreed, holding that the 20-year limitations period applied. The same principle applies here.

The judgment of the circuit court is reversed, and the cause is remanded for a determination of the total amount of defendant’s child support arrearage.

Reversed and remanded.

GREEN, P.J., and KNECHT, J., concur.


author: JUSTICE McCULLOUGH

text:
    METROPOLITAN LIFE INSURANCE COMPANY, successor in interest to College Hills Mall Associates, Plaintiff-Appellee, v. RICHARD L. NAUSS, d/b/a Luca Pizza, Defendant-Appellant.
    Fourth District
    No. 4—91—0506
    Opinion filed March 31, 1992.

      Nile J. Williamson, of Peoria, for appellant.
    John P. Schwulst, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

A jury returned verdicts in favor of plaintiff Metropolitan Life Insurance Company, upon its complaint, in the amount of $32,300 and in favor of Metropolitan Life Insurance Company as to defendant’s counterclaim, following a trial in McLean County, Illinois. Defendant Richard L. Nauss, d/b/a Luca Pizza, appeals contending (1) the verdict is erroneous and must be set aside, as demonstrated by the fact that the amount awarded, though in favor of plaintiff, was substantially less than the amount of damages sought by the plaintiff; and (2) the verdict on his counterclaim was against the manifest weight of the evidence. He seeks a new trial. We affirm.

On October 10, 1986, defendant entered into a three-year lease with plaintiff’s predecessor for a space in the College Hills Mall located in Normal, Illinois. Defendant took possession of that space on November 20, 1986. Defendant’s space had a seating capacity of approximately 40 people.

In late February 1987, the space next to defendant was leased to Old Country Buffet, a restaurant with a seating capacity for approximately 300 people. Prior to the opening of Old Country Buffet, extensive construction was done on the premises, including varnishing the woodwork in the restaurant.

Defendant testified the odor from the varnish was unbearable and that the smell emanated into his walk-in cooler, thereby settling into all of the food stored in the cooler. Defendant testified all the food tasted like varnish and he was unable to serve it because of this varnish taste. Defendant also stated there was severe dust from the construction which covered the food and all the equipment in his restaurant. Defendant contended the problems with the dust and varnish smell lasted approximately four to six weeks. Defendant testified his customers returned the food because of the varnish taste and demanded the return of their money. However, defendant did not offer any evidence to establish whether he refunded the customers’ money or how much money he actually lost because of the varnish taste and dust.

Raymond Baxter, general manager of College Hills Mall at all times relevant to this appeal, testified the varnish odor lasted only one week. Baxter admitted defendant had complained to the mall management about the smell, and in response, Baxter had asked the construction crew at Old Country Buffet to varnish only at night in order to minimize this odor problem.

Old Country Buffet opened for business on April 30, 1987. From the initial opening of the restaurant, large lines formed near its entrance and in such a manner as to go down the corridor toward defendant’s restaurant. Defendant testified he complained several times to the mall management that these lines were blocking the entrances to his restaurant. In response to these complaints, Baxter asked the staff at Old Country Buffet to take measures to control these lines and direct them away from the entrances of defendant’s restaurant. Accordingly, Old Country Buffet’s management purchased stanchions and chains to direct the lines away from defendant’s entrances. Old Country Buffet also placed people outside its entrance directing its patrons not to stand directly next to the walls of defendant’s restaurant but to leave space between the line and the walls as well as space by the entrances to defendant’s restaurant. Daily logs kept by security officers for the mall indicated only one complaint about these lines from defendant, i.e., on Mother’s Day, May 10, 1987. Notations for June 2, 1987, and June 12, 1987, indicated there were large lines at Old Country Buffet during the lunch and dinner hours but these lines did not block the entrances to defendant’s restaurant.

On June 14, 1987, defendant vacated the premises without prior notice to plaintiff. Defendant did not pay rent for June 1987 nor any time thereafter. Baxter testified the basic rent for this space was $1,900 a month, but with additional expenses for items such as utilities and maintenance, the total rent is about $2,600 per month.

Baxter indicated the space vacated by defendant was empty from June 14, 1987, until he left the employment of College Hills Mall in April 1989. During that time period, Baxter showed the space to five or six potential lessees, but none of those businesses leased the premises. Thomas Joyce, the current manager for College Hills Mall, testified the space vacated by defendant was leased starting May 25, 1989. Joyce testified the space was vacant for almost 24 months and the total rents due for that time period were $62,579.42.

Plaintiff filed suit in October 1987, seeking past rent in the amount of $78,771.30, which it alleged had become immediately due by defendant’s default. Plaintiff also sought $4,000 in attorney fees. Defendant filed a counterclaim alleging plaintiff breached the quiet enjoyment clause of the lease by allowing the lines at Old Country Buffet to block the entrances to his restaurant and allowing the varnish odor to seep into his restaurant. Defendant also raised an affirmative defense of “constructive eviction” by virtue of the varnish odor and lines from Old Country Buffet. The jury returned a verdict in favor of plaintiff on the complaint and against defendant on his counterclaim. Defendant appeals.

Defendant contends the jury verdict must be reversed because, although in favor of plaintiff, it was for an amount substantially less than the amount prayed for by plaintiff. Defendant suggests the uncontroverted evidence supported judgment in his favor, or if against him a verdict in the amount of $65,545.42, representing past rent due and attorney fees. He argues that since the jury awarded less than half this amount, without any credible evidence to allow a reduction, it is unsupported by the evidence. We disagree.

Defendant makes the argument that because the jury did not award plaintiff a verdict for lost rents from June 1, 1987, until May 25, 1989, plus attorney fees in the amount of $2,966, the judgment must be reversed and a new trial granted. Defendant argues the record supports and the jury should have entered a verdict in favor of the plaintiff in the sum of $65,545.42. This is a curious argument by defendant. No issue is presented by the plaintiff that the verdict is inadequate. The authorities cited by defendant concern plaintiff’s questioning the adequacy of a verdict.

It is the jury’s function to determine the preponderance of the evidence, and a reviewing court will reverse only if that determination is against the manifest weight of the evidence. (Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 423, 412 N.E.2d 447, 454.) A reviewing court may order a new trial if the damages are manifestly inadequate, if it is clear that proved elements of damages have been ignored, or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. (Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 407, 485 N.E.2d 4, 6.) A verdict should be examined to ascertain the intention of the jury in returning it and, if the verdict is supportable, it will be molded into form and made to serve unless there is doubt as to its meaning. Seaman v. Wallace (1990), 204 Ill. App. 3d 619, 639, 561 N.E.2d 1324, 1338.

The mere fact that the verdicts returned were for a lesser sum than requested by the plaintiff will not be the basis for a reversal under the facts. (Becker v. People (1896), 164 Ill. 267, 273, 45 N.E. 500, 502; Moyers v. Illinois Central R.R. Co. (1915), 197 Ill. App. 179, 187; LeMaitre v. Union Electric Power Co. (1947), 331 Ill. App. 270, 274, 73 N.E.2d 125, 127.) The fact that the jury was less than generous does not necessarily mean that its award is legally or palpably inadequate. (Brown v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1977), 51 Ill. App. 3d 1044, 1046, 367 N.E.2d 155, 156.) If there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses sought, then the verdict of the jury should not be disturbed on review. Potter v. Rodrick (1979), 77 Ill. App. 3d 7, 12, 395 N.E.2d 746, 750.

The mere fact that the jury awarded plaintiff roughly half what it asked for in damages is not a basis for reversal. The jury heard testimony regarding plaintiff’s attempts to relet the premises after defendant vacated them. Evidence was presented that the base monthly rate was $1,900 per month. The jury also heard evidence regarding the lines blocking the entrances to defendant’s restaurant and the odors from the varnishing. The jury could have concluded defendant was entitled to an offset because of damages suffered by these inconveniences. The jury was presented with evidence of the measures taken by plaintiff to control the lines and could have concluded greater efforts might have been taken to minimize the damages to defendant. As there are several rational explanations for the reduction of damages awarded by the jury, the verdict will not be disturbed.

Defendant next contends the jury verdict on his counterclaim was contrary to the manifest weight of the evidence. Plaintiff suggests defendant has waived this argument by failing to raise this issue in his post-trial motion.

Supreme Court Rule 366(b)(2)(iii) provides that “[a] party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion.” (134 Ill. 2d R. 366(b)(2)(iii).) Failure to raise an issue in a post-trial motion constitutes waiver of that issue on appeal. See, e.g., Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337; Kaiser Agricultural Chemicals v. Rice (1985), 138 Ill. App. 3d 706, 486 N.E.2d 417.

After carefully examining defendant’s post-trial motion, we conclude the issue of breach of the quiet enjoyment clause of the lease has been waived. In paragraph two of his post-trial motion, the only paragraph addressing “constructive eviction,” defendant alleges the trial court erred in submitting the court’s instruction No. 1, which defined the issues in this case. Defendant contends the instruction was improper because it did not properly define “constructive eviction” and included the word “permanent” in that definition. In his brief, however, defendant argues the verdict was against the manifest weight of the evidence, rather than challenging the propriety of the jury instruction. Inasmuch as error. regarding jury instructions and the manifest weight of the evidence constitute different issues, defendant has waived the latter issue.

Moreover, even addressing defendant’s argument, we find it to be without merit. The covenant or warranty of quiet enjoyment is prospective in nature and is breached only when there is an actual or constructive eviction of the covenantee by the paramount titleholder. (Brown v. Lober (1979), 75 Ill. 2d 547, 553, 389 N.E.2d 1188, 1191.) A constructive eviction requires that the landlord have done something of a grave and permanent character with the intention of depriving the tenant of enjoyment of the premises. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 146, 427 N.E.2d 1039, 1044.) There can be no constructive eviction, however, without the vacating of the premises. (Dell’Armi Builders, Inc. v. Johnston (1988), 172 Ill. App. 3d 144, 148, 526 N.E.2d 409, 411-12.) Where premises leased are rendered useless to the tenant or the tenant is deprived, in whole or in part, of the possession and enjoyment thereof as the result of the wrongful act of the landlord, there is a constructive eviction. John Munic Meat Co. v. H. Gartenberg & Co. (1977), 51 Ill. App. 3d 413, 416, 366 N.E.2d 617, 620.

A constructive eviction discharges the liability of the tenant to pay rent or otherwise comply with the terms of the lease, and he may abandon the premises. (Automobile Supply Co. v. Scene-In-Action Corp. (1930), 340 Ill. 196, 200-01, 172 N.E. 35, 37.) However, the tenant may not abandon the premises before allowing the lessor a reasonable opportunity to remedy the problem. (Applegate v. Inland Real Estate Corp. (1982), 109 Ill. App. 3d 986, 990, 441 N.E.2d 379, 383.) The question of whether a tenant has been constructively evicted is one of fact, and the decision of the trier of fact will not be reversed unless against the manifest weight of the evidence. Applegate, 109 Ill. App. 3d at 989, 441 N.E.2d at 382.

The evidence presented at trial was sufficient to support the jury’s verdict that defendant was not constructively evicted from the leased premises. The varnish odors emanating from Old Country Buffet lasted only four or five days and cannot be characterized as “grave or permanent.” Moreover, plaintiff took reasonable steps to minimize the damage to defendant by asking the construction crew at Old Country Buffet to varnish only at night.

Likewise, the lines at Old Country Buffet were neither “permanent” nor “grave” in character and only on one day did they go past both entrances of defendant’s restaurant. The security officers’ daily logs indicated a sole complaint was made on Mother’s Day, May 10, 1987. Other entries in those logs were dated June 2, 12, and 13 and indicated the lines were present but did not block defendant’s entrances. The mall management staff asked Old Country Buffet to attempt to control their lines and Old Country Buffet did so by posting people outside the restaurant to direct the lines away from the entrances and walls of defendant’s restaurant. Photographs entered into evidence demonstrated the lines were several feet away from the walls of defendant’s restaurant and did not block the entrances to it. The jury could reasonably have concluded that plaintiff remedied the problem and defendant’s abandonment of the premises was unjustified.

Therefore, the jury verdicts in favor of plaintiff on the complaint and against defendant on his counterclaim were not against the manifest weight of the evidence.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE WELCH

text:
    ELDON R. WILLIAMS, Plaintiff-Appellant, v. HARLEY L. GARMANE, Defendant-Appellee (Thomas R. Johnson, Plaintiff).
    Fifth District
    No. 5—91—0065
    Opinion filed April 7, 1992.
    Paul Christenson, of Bailey & Christenson, of Murphysboro, for appellant.

      Phillip G. Palmer, of Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Eldon R. Williams, appeals from the October 12, 1990, judgment order entered by the circuit court of Jackson County on the jury verdict in favor of defendant, Harley L. Garmane, and the January 3, 1991, order denying plaintiff’s post-trial motion. The sole issue presented by plaintiff for our review is whether the circuit court erred in giving defendant’s instruction No. 16. This instruction, given over plaintiff’s objection, stated as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching *** a hill crest *** or when a special hazard exists with respect to *** other traffic or by reason of weather or highway conditions.
If you decided [sic] that a party violated the statute on the occasion in question, then you may consider that fact, together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, a party was negligent before and at the time of the occurrence.” (Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1992) (hereinafter IPI Civil 3d No. 60.01).)

(Ill. Rev. Stat. 1987, ch. 95½, par. 11—601(a).) Plaintiff contends that it was error to have given this instruction because there was no evidence in the trial record to support a conclusion that plaintiff violated the Illinois Vehicle Code statute requiring him to reduce speed at the time of the accident or that a violation was a proximate cause of plaintiff’s injuries. Plaintiff maintains that the outcome of his jury trial was substantially prejudiced by the giving of this instruction and asks this court to reverse the October 12, 1990, judgment and January 3, 1990, order of the circuit court of Jackson County and remand this cause for a new trial.

The relevant evidence adduced at trial indicates that plaintiff was injured on September 3, 1988, when the pickup truck he was driving left Highway 127 near Murphysboro, Illinois, hit an embankment and overturned, end over end. Plaintiff testified that he was driving north on Highway 127, and at the bottom of a hill he passed a slower-moving vehicle which was traveling about 30 miles per hour. Plaintiff testified that as he was going up the long grade of this hill he was traveling about 45 miles per hour.

When he reached the crest of the hill he saw a set of headlights in his lane of the highway. As soon as he saw the headlights, plaintiff testified, he hit his brakes and went into a slide but was still in control of his vehicle as he steered it onto the shoulder of the highway where he lost control, struck the embankment and overturned. Plaintiff testified that he took this action in order to avoid a head-on crash.

Plaintiff received injuries to his right eye, arm, finger and shoulder and incurred medical bills in excess of $10,000 as a result of this accident. The medical bills were admitted into evidence as plaintiff’s exhibits 9 through 23. Plaintiff also testified that he lost nine weeks of work as a result of the accident and that his normal work week was 40 hours and pay was $7.16 per hour. Plaintiff also claimed damages for pain and suffering.

On cross-examination, plaintiff admitted that he was familiar with the area of the accident and knew there was a crest at the end of the hill and a decline after the crest. He also admitted that it was dark and raining the night of the accident. Plaintiff further admitted that there was no one approaching the area in the southbound lane of traffic when he determined to leave the highway in order to avoid a collision, but he felt it would have been more dangerous to have steered his car into the oncoming lane of traffic.

Defendant was called by the plaintiff as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1102). He testified that on the evening of September 3, 1988, he was traveling south on Highway 127 in his pickup truck when he was flagged down by two men whose vehicle had slid off the road crossways into a ditch. Defendant observed that part of their vehicle was sticking out into the northbound lane of the roadway by approximately 3^2 feet.

Defendant determined that the only way he could pull the vehicle from the ditch was to move his truck to the left side of the roadway, position it so that two wheels were on the road and two were on the shoulder, and then try to turn the vehicle. Defendant removed a tow strap and three flares from his truck and was going to set a flare in order to warn oncoming motorists when plaintiff’s truck came over the crest from the south, turned, hit the shoulder and went into the air. Defendant stated that the only thing he could do was get out of the way.

Defendant testified on direct examination that Highway 127 is a two-lane, north-and-south highway in the area of the accident. Defendant decided to help the men because their vehicle had no lights and would have been a hazard to northbound traffic. He testified that when he parked his truck partially in the northbound lane, both headlights and emergency-light flashers were operating on his truck. Defendant also testified that the two men fled the scene shortly after the accident.

Sergeant David Allen of the Jackson County sheriff's department testified that he reported to the scene of plaintiff’s accident on September 3, 1988. He spoke with James McKinney and Kelly Vinson, two eyewitnesses to the accident, as well as defendant. Sergeant Allen also made some measurements of skid marks and other observations at the scene. Sergeant Allen was asked if he had determined whether plaintiff was driving in excess of the speed limit and if he had determined what speed plaintiff’s vehicle had been going. Defendant’s objections to both questions were sustained by the court.

Sergeant Allen confirmed that the vehicle in the ditch was perpendicular to the highway and stated that its front tires were positioned directly on the white line which marks the boundary of the road. Sergeant Allen reported that tire marks, indicating that plaintiff had applied the brakes, started almost immediately after the crest of the hill and continued to the point where the truck left the highway. These tire or skid marks extended a total distance of 142 feet 9 inches. The distance between the vehicle in the ditch and the point where the skid marks ended was 145 feet.

James McKinney testified that on the evening of September 3, 1988, he and Kelly Vinson were traveling northbound on Highway 127 in McKinney’s vehicle. He stated that at the bottom of a hill he was passed by a truck heading north. McKinney stated that if the speed limit was 40, they were traveling approximately five miles under the limit. He admitted that in a previous statement he had estimated their speed at 45 miles per hour.

As their vehicle crested the hill, McKinney saw the brake lights of the truck which had passed them. The truck then swerved off to the right-hand side of the road, hit an embankment and flipped. He testified that he saw lights from another pickup truck in the northbound lane. This vehicle was parked in the traffic lane with its headlights on, and he recalled seeing yellow lights beneath the headlights but did not remember if they were flashing.

McKinney stopped his vehicle about 20 yards before the place where the truck had flipped, and he did not lose control of his vehicle as he was stopping. McKinney called the police for assistance, and he and Vinson went to assist the driver and his passenger. Before the police arrived, McKinney asked defendant to move his truck after a third vehicle came over the crest of the hill and McKinney heard its tires screech. McKinney stated that the third vehicle did not lose control when its brakes were applied.

Kelly Vinson testified that she was a passenger in Jim McKinney’s vehicle on the evening of September 3, 1988. As they were going up a hill, a truck had passed them. Vinson stated that they were driving quite slowly so that the people who passed them were not speeding. She also testified that she and McKinney were going about 45 miles an hour. As they went over the crest of the hill, she was momentarily looking down, but looked up in time to see the truck on its last bounce before it landed. Vinson also saw a truck with bright lights facing them in their lane. She could not remember whether or not that truck had its hazard lights on. Their vehicle did not lose control when McKinney brought it to a stop.

Plaintiff alleged in his complaint, inter alia, that the collision of his truck with the embankment was the direct and proximate result of defendant’s failure to drive his vehicle in the proper southbound lane; stopping and parking his vehicle on the roadway below the crest of a hill on the wrong side of the road creating a dangerous hazard to other motorists on the highway; and failure to give any warning of any kind to other motorists that he was parked in the middle of the highway. As an affirmative defense, defendant alleged that plaintiff’s negligence was the direct and proximate cause of the collision and that said negligence consisted of the following acts or omissions: plaintiff drove his vehicle at a speed greater than was reasonable and proper under the circumstances, failed to keep his vehicle under proper control, failed to keep a proper lookout ahead, and failed to pass defendant’s vehicle on the left when said lane of traffic was free of oncoming traffic.

Plaintiff argues that no instructions concerning violations of a statute should be given unless the evidence is adequate to support a finding that a violation actually occurred, citing in support of this proposition Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 325 N.E.2d 607, and Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 351 N.E.2d 624. Plaintiff also argues that no instruction concerning violation of a statute should be given unless that violation was a proximate cause of the injury, citing French v. City of Springfield (1976), 65 Ill. 2d 74, 357 N.E.2d 438. The notes on use for IPI Civil 3d No. 60.01 state:

“This instruction should be given only where the evidence would support a finding that the injury complained of was proximately caused by a violation of a statute, ordinance, or administrative regulation, rule, or order intended to protect against such an injury, and that the injured party is within the class intended to be protected by the statute, ordinance, or administrative regulation.” (IPI Civil 3d No. 60.01, Notes on Use, at 60 — 7.)

The Comments for this same IPI instruction further state that there must be evidence from which the jury can find that the violation was a proximate cause of the injury. IPI Civil 3d No. 60.01, Comment, at 60 — 8.

Defendant argues, however, that the giving of defendant’s instruction No. 16 did not constitute reversible error because section 11 — 601 of the Illinois Vehicle Code places an affirmative duty on drivers to reduce their speed before approaching the crest of a hill, when approaching a vehicular hazard, or when mandated by weather or highway conditions. (See Ill. Rev. Stat. 1989, ch. 95½, par. 11—601(a).) Defendant maintains that the testimony indicates that plaintiff engaged in passing the McKinney vehicle as he approached the crest of the hill and that it was dark and raining. Defendant concludes that from this evidence a reasonable jury could infer that plaintiff had not sufficiently reduced his speed as he approached the crest of the hill. Thus, the giving of defendant’s instruction No. 16 was not error and, when considered along with all of the evidence, was not prejudicial to the point of constituting reversible error.

We note that section 11 — 601(a) of the Illinois Vehicle Code, the statute defendant contended was violated by plaintiff in defendant’s instruction No. 16, does not address driving over the maximum limit; rather, it imposes a duty on drivers to decrease their speed even when driving under the maximum limit. (Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 405, 487 N.E.2d 798, 804.) A person can be driving under the speed limit and still be driving too fast for conditions. (Figarelli, 39 Ill. App. 3d at 1028, 351 N.E.2d at 629.) Although not set forth in defendant’s instruction No. 16, section 11 — 601(a) of the Illinois Vehicle Code initially states that “[n]o vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property.” Ill. Rev. Stat. 1989, ch. 95½, par. 11—601(a).

Plaintiff is arguing, however, that there was no evidence that he failed to decrease his speed at the crest of the hill. We agree. Plaintiff, James McKinney and Kelly Vinson all testified to speeds their respective vehicles were traveling at the bottom of the hill or as they were going up the long grade of the hill. Although defendant argues that the passing of McKinney’s vehicle by plaintiff as the two vehicles approached the hill creates an inference that plaintiff did not reduce his speed as he approached the crest of the hill, a review of the testimony of plaintiff, McKinney and Vinson indicates that plaintiff had completed his pass of McKinney’s vehicle before reaching the crest of the hill.

Moreover, plaintiff was never asked whether or not he reduced his speed prior to reaching the crest of the hill. Plaintiff testified that as soon as he saw the headlights of defendant’s truck he braked his vehicle and started skidding, but again, there was no evidence that he had not also braked his vehicle prior to reaching the knoll. Although McKinney testified that he saw plaintiff’s brake lights after McKinney’s vehicle had crested the hill, McKinney was also not asked whether he had seen plaintiff’s brake lights prior to the crest of the hill. While there was testimony by Sergeant Allen with regard to the length of plaintiff’s skid marks, Allen was not permitted to testify whether plaintiff was driving in excess of the speed limit or if he had determined what speed plaintiff’s vehicle had been going due to the court’s sustaining of defendant’s objections. An opinion concerning what speed plaintiff had been traveling when he began braking his vehicle would have provided sufficient evidence as to whether plaintiff had applied his brakes when he approached the hill.

With regard to the duty to decrease speed when a special hazard exists with respect to other traffic or by reason of weather or highway conditions, defendant presented no evidence, by way of an accident reconstructionist or otherwise, that because of the darkness, rain or grade of the hill or its decline after the crest plaintiff was driving too fast for conditions. Defendant argues, however, that evidence of this fact was of record by inference because McKinney and the next driver who came upon the scene had no difficulty controlling their vehicles and bringing them to a safe stop at the scene of the accident whereas plaintiff left 142 feet of skid marks before leaving the road. Defendant notes that an instruction with regard to a statutory violation is properly given when there is sufficient evidence from which the jury could have reasonably inferred that the party failed to exercise reasonable care in reducing her speed. (Figarelli, 39 Ill. App. 3d at 1028, 351 N.E.2d at 629.) The Figarelli court discussed an instruction given regarding a motorist’s duty not to drive at an unreasonable speed when a special hazard exists with respect to pedestrians. Plaintiff’s decedent, a five-year-old child, was struck and killed by defendant’s vehicle when the decedent stepped into the path of the car from in front of a parked ice cream truck. The court noted that witnesses had testified that defendant was “proceeding down the street at a speed which evidenced no consideration for the fact that an ice-cream truck was present” and “was traveling at the speed which most cars traveled down [that street] when there was no ice-cream truck present.” (Figarelli, 39 Ill. App. 3d at 1024, 1027-28, 351 N.E.2d at 626, 628-29.) In the instant case, however, there was no testimony whatsoever of plaintiff’s speed at the crest of the hill or that plaintiff was traveling too fast on this hilly, wet and dark road. Indeed, Ms. Vinson testified that “they weren’t speeding.” Without such evidence we do not believe there was sufficient evidence from which the jury could have reasonably inferred that plaintiff failed to exercise reasonable care in reducing his speed because of the hill, weather, or special hazards.

We therefore hold that the circuit court erred in giving defendant’s instruction No. 16. Because this instruction also presented defendant’s affirmative defense to the jury, we cannot say that its giving was harmless. Accordingly, the October 12, 1990, judgment of the circuit court of Jackson County is reversed and this cause will be remanded for a new trial.

Reversed and remanded.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY A. GRIMES, Defendant-Appellant.
    Fifth District
    No. 5—91—0587
    Opinion filed April 3, 1992.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Barry Vaughan, State’s Attorney, of Fairfield (Norbert J. Goetten, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On January 2, 1991, Bobby A. Grimes was charged in a four-count information with the offenses of home invasion and three counts of aggravated battery against three different victims. The charges arose from an incident which occurred on January 1, 1991, in which defendant and three other individuals entered the home of the victims and severely beat them with clubs.

On February 28, 1991, after reaching an agreement with defendant to plead guilty, the State charged defendant with the additional offense of residential burglary and, in return for defendant’s guilty plea to that charge, dismissed the other four counts of the information. The State agreed to recommend that the sentence of imprisonment not exceed 10 years; it was agreed that defendant could argue for a lesser sentence. Residential burglary, a Class I felony, carries a possible prison sentence of not less than 4 nor more than 15 years. Probation is not an option; impact incarceration is an option if the sentence imposed is not more than five years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—1; Ill. Rev. Stat., 1990 Supp., ch. 38, par. 1005—8—1.1.) The circuit court of Wayne County accepted defendant’s plea of guilty on that date and, after ordering a presentence investigation and report, set sentencing for May 2, 1991.

A sentencing hearing was held May 2, 1991. The trial court reviewed the presentence report and heard evidence in aggravation and mitigation and argument of counsel. The State argued that a 10-year sentence of imprisonment, the maximum allowed under the plea agreement, would be appropriate. Defendant’s counsel argued for a sentence of five years’ imprisonment with assignment to the impact-incarceration program. The circuit court of Wayne County sentenced defendant to a term of imprisonment of eight years.

On June 3, 1991, defendant, through his court-appointed counsel, filed a motion to reduce sentence alleging that the court had failed to properly consider the factors in mitigation, particularly that the defendant had no history of criminality and had a limited involvement in the crime for which he was sentenced, that the court was prejudiced against defendant, that defendant should have been sentenced to the impact-incarceration program and that defendant was prejudiced at his sentencing hearing by the State’s presentation of evidence of defendant’s guilt and the brutality of the crimes. This motion came on for hearing on August 1, 1991, and was denied that date.

Defendant filed his notice of appeal from the denial of his motion to reduce sentence on August 13, 1991. On appeal, defendant argues that this cause should be remanded to the trial court for further proceedings on his motion to reduce sentence because his trial counsel failed to file a certificate pursuant to Supreme Court Rule 604(d) stating that she had consulted with defendant to ascertain his contentions of error, had examined the court file and report of proceedings and had made any amendments to the motion necessary for adequate presentation of any defects in the proceedings.

Supreme Court Rule 604(d) pertains to appeals by criminal defendants from judgments entered upon pleas of guilty. It provides that

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. *** The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. *** Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” 134 Ill. 2d R. 604(d).

In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, our supreme court held that the filing of a Rule 604(d) motion to withdraw a guilty plea is mandatory and a prerequisite to appeal where a defendant alleges error in the entry of his plea and wishes to challenge his guilty plea. However, where a defendant wishes to appeal only from his sentence entered upon a plea of guilty, he need not file a motion to withdraw his plea. He need only file a motion to reconsider his sentence before the trial court in order to preserve the issues for appeal. The filing of a motion to reconsider sentence before the trial court is mandatory and is a prerequisite to an appeal from that sentence. People v. Wallace (1991), 143 Ill. 2d 59, 61, 570 N.E.2d 334, 335.

Defendant in the instant case argues that, because the filing of a motion to reconsider sentence entered upon a guilty plea is necessary to preserve the right to appeal from that sentence, the filing of an attorney’s certificate pursuant to Rule 604(d) is also necessary where a defendant seeks only review of his sentence imposed upon his guilty plea. Because his counsel failed to file the appropriate certificate, defendant argues, this cause must be remanded to the trial court for further proceedings on his motion to reduce sentence, including the filing of the appropriate certificate by his counsel.

Defendant is correct that where a defendant files a motion to withdraw his guilty plea pursuant to Rule 604(d), his counsel must file the certificate required by that rule and the trial court cannot proceed on the motion in the absence of the certificate. Proceeding on the motion in the absence of the certificate constitutes reversible error and the cause will be remanded for the filing of a new motion and a new hearing. People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30; People v. Hancock (1991), 208 Ill. App. 3d 1092, 567 N.E.2d 633.

However, it has been repeatedly held that, where a defendant has filed only a motion to reconsider his sentence entered upon his plea of guilty, the filing of a Rule 604(d) certificate is not required. (People v. Jordan (1991), 209 Ill. App. 3d 983, 568 N.E.2d 988; People v. Dickerson (1991), 216 Ill. App. 3d 561, 575 N.E.2d 935; People v. Christy (1991), 220 Ill. App. 3d 1029, 581 N.E.2d 421.) No case has held that the Rule 604(d) certificate is required in cases where a defendant challenges only the sentence entered upon his plea of guilty.

In People v. Jordan (1991), 209 Ill. App. 3d 983, 568 N.E.2d 988, defendant, who pled guilty to a charge of forgery, filed a motion before the trial court to reconsider his sentence of five years’ imprisonment. The motion was denied. Defendant appealed, arguing that he was entitled to a new hearing on his motion to reconsider sentence because his counsel had failed to file a certificate pursuant to Rule 604(d) stating that he had examined the record and consulted with defendant to determine his contentions of error. Defendant argued that because a motion to reconsider a sentence entered upon a guilty plea is so similar to a motion to withdraw a guilty plea, it should be accompanied by a Rule 604(d) certificate. The appellate court disagreed, stating:

“A motion to reconsider a sentence is fundamentally different from a motion to withdraw a guilty plea. The former seeks review of the sentence imposed, while the latter raises issues relating to the validity of the guilty plea. [Citation.] Since the motions are different and Rule 604 imposes no certificate requirement on a motion to reconsider the sentence, we find that counsel did not err in failing to file a certificate.” Jordan, 209 Ill. App. 3d at 986, 568 N.E.2d at 990.

In People v. Dickerson (1991), 216 Ill. App. 3d 561, 575 N.E.2d 935, defendant argued on appeal that he had been denied equal protection of the law because, while Supreme Court Rule 604(d) requires the filing of an attorney’s certificate where a defendant seeks to withdraw his guilty plea, it does not require such a certificate where a defendant seeks only reconsideration of the sentence entered upon his guilty plea. The certificate requires the attorney to certify that he reviewed the court file, consulted with his client and made any necessary amendments to the pro se motion. The appellate court acknowledged that Rule 604(d) does not require the filing of an attorney’s certifícate where a defendant seeks only reconsideration of the sentence entered upon his plea of guilty, pointing out that the Rule is silent regarding challenges to sentences following either a guilty plea or a trial. (Dickerson, 216 Ill. App. 3d at 565, 575 N.E.2d at 937.) However, the court held that this does not constitute a deprivation of equal protection.

“A defendant withdrawing a guilty plea and a defendant seeking a sentence reduction are not similarly situated.
***
*** The potential consequences of withdrawing a guilty plea are far greater than in challenging a sentence. A defendant who successfully seeks to withdraw a guilty plea may sacrifice the sentencing leniency of the trial court. ‘A trial court is allowed discretionary leniency in the sentencing of a defendant who assumes responsibility for his conduct by pleading guilty.’ (People v. Sanchez (1989), 189 Ill. App. 3d 1011, 1018, 546 N.E.2d 268, 273.) For these reasons, the State could rationally choose to treat such defendants differently by requiring a certificate of compliance by the attorney representing the defendant at a hearing on the motion to withdraw the plea.” Dickerson, 216 Ill. App. 3d at 564-65, 575 N.E.2d at 937-38.

Finally, in People v. Christy (1991), 220 Ill. App. 3d 1029, 581 N.E.2d 421, the sole issue on appeal was whether a Rule 604(d) certificate is necessary when filing a motion to reconsider a sentence entered upon a guilty plea. The court concluded that, because a motion to withdraw a guilty plea is not necessary to challenge the sentence entered upon that plea, neither is the filing of a certificate pursuant to Rule 604(d) required to challenge a sentence entered upon a guilty plea.

It is true that we need not in all instances follow the decisions of the appellate courts of other districts. (Stec v. Oak Park Police Pension Board (1990), 204 Ill. App. 3d 556, 563, 561 N.E.2d 1234, 1238.) However, there are compelling reasons to do so where, as here, we have not previously decided the issue and there is no split of authority among the districts. (People v. Ward (1989), 192 Ill. App. 3d 544, 554, 548 N.E.2d 1120, 1127.) We agree with the decisions of the other districts of our court on this issue, as well as the reasoning underlying their decisions.

Accordingly, we affirm the judgment of the circuit court of Wayne County denying defendant’s motion to reduce his sentence entered upon his plea of guilty to the offense of residential burglary.

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN OUTLAND, Defendant-Appellant.
    Fifth District
    No. 5-91-0215
    Opinion filed April 2, 1992.

      Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, John Outland, appeals from the denial of his motion for a free transcript of his sentencing hearing, to be used in preparing his motion to reduce sentence, following his guilty plea to a charge of aggravated criminal sexual abuse. He argues that Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) requires that he be provided with such a transcript and that, because he was denied the transcript, this cause must be remanded to the trial court for a new hearing on his motion to reduce sentence. We disagree.

On April 20, 1990, defendant was charged by information in the circuit court of Fayette County with the offense of aggravated criminal sexual abuse in that, on or about April 14, 1990, defendant, being the father of the victim who was under the age of 18 years, knowingly fondled the victim’s breasts and put his mouth on her breasts for the purpose of his own sexual arousal, in violation of section 12— 16(b) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(b)). A second count of the information charged defendant with the offense of battery in that on or about April 17, 1990, defendant, without legal justification, knowingly caused bodily harm to the same victim in that he hit her about the head with his hand in violation of section 12 — 3(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 12—3(a)(1)). On August 15, 1990, the first count of the information was amended to reflect that the date of the offense was on or about April 12,1990.

On September 19, 1990, defendant, through his court-appointed counsel, entered a negotiated plea of guilty to count I of the amended information. In return for defendant’s guilty plea, the State agreed to dismiss count II of the information (battery) and to recommend a sentence of imprisonment not in excess of five years. Defendant would be allowed to argue for a lesser sentence. The court would not be bound by the State’s recommendation and could impose a sentence in excess of five years. Aggravated criminal sexual abuse is a Class II felony, which carries a possible prison term of not less than three years and not more than seven years. Probation is an option. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—1.) Also, as part of the plea agreement, defendant’s bond was to be continued subject to certain agreed-upon conditions. The defendant’s plea was accepted by the court.

The cause came on for sentencing hearing on February 8, 1991. The State presented evidence and argument in aggravation. Defendant presented evidence and argument in mitigation. Defendant was permitted to submit a written statement in allocution and was also permitted to make a verbal statement in allocution. The court received and reviewed a presentence investigation report. Following hearing, the court sentenced defendant to a term of imprisonment of four years, followed by two years of mandatory supervised release.

On March 7, 1991, defendant filed a motion for a free transcript of the hearing on the presentation of his guilty plea and a free transcript of his sentencing hearing so that defendant could prepare a motion to withdraw his guilty plea. On that same date, defendant filed a “Motion for Leave to Withdraw Plea of Guilty and for Vacatur of Judgment.” The motion included allegations of error only with respect to defendant’s sentencing and not with respect to the presentation of his plea.

However, also on March 7, 1991, defendant filed a motion for leave to supplement his motion to withdraw his plea upon receipt of the transcripts of the hearings on the presentation of his plea and sentencing. Defendant’s motion for a free transcript of the hearing on the presentation of defendant’s plea was granted, and defendant did receive a copy of that transcript. Defendant’s motion to withdraw his plea was supplemented with additional allegations of error which related to the presentation of his plea. Defendant’s attorney filed a certificate pursuant to Supreme Court Rule 604(d) on March 21,1991.

Defendant’s motion to withdraw his plea came on for hearing on March 21, 1991. At this hearing, defendant renewed his motion for a free transcript of his sentencing hearing. The trial court denied this motion, finding that it was premature. The court pointed out that a defendant is not entitled to a transcript of his sentencing hearing until an appeal is taken. Because defendant is entitled as a matter of law to a transcript of the hearing on the presentation of his guilty plea, that motion had been granted. The parties and court agreed that defendant’s original “Motion for Leave to Withdraw Plea of Guilty and for Vacatur of Judgment” constituted a motion for reduction of sentence. Defendant’s original and supplemental motions to withdraw his guilty plea and for reduction of sentence were denied.

On appeal, defendant argues that the trial court erred in denying his motion for a free transcript of his sentencing hearing. Defendant argues that Supreme Court Rule 604(d) requires that an indigent defendant be provided with a free transcript of the hearings relating to his guilty plea, including his sentencing hearing. According to defendant, the circuit court’s refusal to furnish the transcript was error which requires reversal of the trial court’s denial of the motion to reconsider defendant’s sentence and remand for further hearings on that motion.

Supreme Court Rule 604(d) pertains to appeals by criminal defendants from judgments entered upon pleas of guilty. It provides that:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (134 Ill. 2d R. 604(d).)

If the defendant is found to be indigent and is unrepresented by counsel, the rule requires the appointment of counsel. The rule further provides that:

“If the defendant is indigent, the trial court shall order a copy of the transcript as provided in Rule 402(e) be furnished the defendant without cost.” (134 Ill. 2d R. 604(d).)

Finally, Rule 604(d) requires that counsel file a certificate with the trial court stating that the attorney has consulted with the defendant to ascertain his contentions of error, has examined the trial court file and report of proceedings of the plea of guilty, and has made any necessary amendments to the motion. 134 Ill. 2d R. 604(d).

It has been established that, where a defendant wishes only to challenge the sentence entered upon his plea of guilty, he need not file a motion to withdraw his plea of guilty pursuant to Rule 604(d). (People v. Wilk (1988), 124 Ill. 2d 93, 110, 529 N.E.2d 218, 224.) Instead, the defendant need only file in the trial court a motion to reconsider the sentence. (People v. Wallace (1991), 143 Ill. 2d 59, 61, 570 N.E.2d 334, 335.) Furthermore, it has been held that, where a defendant challenges only the sentence entered upon his plea of guilty through a motion to reconsider that sentence, his attorney need not file the certificate required by Rule 604(d) when a motion to withdraw the guilty plea is filed. People v. Grimes (1992), 226 Ill. App. 3d 1029; People v. Jordan(1991), 209 Ill. App. 3d 983, 568 N.E.2d 988; People v. Christy (1991), 220 Ill. App. 3d 1029, 581 N.E.2d 421.

We are now asked to decide whether, where a defendant challenges only his sentence entered upon a plea of guilty through the filing of a motion to reconsider that sentence, Rule 604(d) requires that he be provided, at no cost, with a transcript of the sentencing hearing. Based upon the language of the rule itself, we find that it does not.

When a motion to withdraw a guilty plea is filed, Rule 604(d) requires that an indigent defendant be furnished, at no cost, with a copy of the transcript as provided in Supreme Court Rule 402(e) (134 Ill. 2d R. 402(e)). Supreme Court Rule 402 sets forth certain requirements with regard to hearings on pleas of guilty. One of those requirements, provided in paragraph (e), is that, in cases in which a defendant is charged with a crime punishable by imprisonment in a penitentiary, the proceedings required by Rule 402 be in open court, be taken verbatim, and upon order of the trial court transcribed, filed and made a part of the common law record. 134 Ill. 2d R. 402(e).

The proceedings required by Supreme Court Rule 402 are: that the trial court shall not accept a plea of guilty unless, in open court, the court has admonished the defendant with respect to the nature of the charge, the possible penalties, the defendant’s right to plead not guilty or to persist in a plea of not guilty, and that, by pleading guilty defendant gives up his right to a jury trial and the right to confront witnesses; that the trial court shall not accept a plea of guilty without first determining in open court that the plea is voluntary and the terms of any plea agreement; and that the court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea. The rule allows the trial court to assist in, but not to initiate, plea agreements. 134 Ill. 2d R. 402.

It is these proceedings which paragraph (e) of Rule 402 requires be taken verbatim and, upon order of the trial court, transcribed, filed and made a part of the common law record. Rule 402 makes no mention of procedures pertaining to sentencing hearings following guilty pleas and sets forth no requirements with respect to sentencing hearings following a guilty plea. The rule does not require that sentencing hearings following guilty pleas be taken verbatim or transcribed.

Because Rule 604(d) requires only that a defendant be furnished with the transcript as provided in Rule 402(e), and because Rule 402(e) requires reporting and transcribing only of hearings relating to the taking of the guilty plea and not to sentencing following the guilty plea, we find that defendant was not entitled to a transcript of his sentencing hearing.

We support our decision with reference to the Jordan case, already cited herein, and to People v. Dickerson (1991), 216 Ill. App. 3d 561, 575 N.E.2d 935. In both cases it was held that a motion to reconsider a sentence is fundamentally different from a motion to withdraw a guilty plea. Jordan held that since the two motions are different and Rule 604(d) imposes no attorney’s certificate requirement on a motion to reconsider the sentence, counsel did not err in failing to file a certificate. (Jordan, 209 Ill. App. 3d at 986, 568 N.E.2d at 990.) In Dickerson, the court pointed out that, while Rule 604(d) requires the court to appoint counsel for a defendant who seeks to withdraw a guilty plea, if indigent, and to provide a transcript and a hearing, the rule is silent regarding challenges to sentences following either a guilty plea or a trial. Dickerson, 216 Ill. App. 3d at 564-65, 575 N.E.2d at 937.

Supreme Court Rule 604(d) sets forth no requirements with respect to motions to reconsider sentences entered upon pleas of guilty. It sets forth requirements only with respect to motions to withdraw guilty pleas. As Dickerson points out, Rule 604(d) is silent regarding chaUenges to sentences following either a guilty plea or a trial. (216 Ill. App. 3d at 565, 575 N.E.2d at 937.) If Rule 604(d) does not require the filing of the attorney’s certificate in the case of a motion to reconsider sentence, then similarly, it does not require that a defendant filing a motion to reconsider sentence be furnished, at no cost, with a transcript of his sentencing hearing. The trial court did not err in denying defendant’s motion for a free transcript of his sentencing hearing.

We turn now to defendant’s second issue on appeal: whether the trial court abused its discretion in sentencing defendant to four years’ imprisonment where other sentencing alternatives were more fitting. Defendant argues that probation would have been the more appropriate and preferred disposition. Defendant alleges no error in sentencing other than that the sentence is excessive and does not properly consider the defendant’s rehabilitative potential, as required by the Illinois Constitution. Ill. Const. 1970, art. I, §11.

A trial judge’s decisions in regard to sentencing are entitled to great deference and weight, and absent an abuse of discretion by the trial court, a sentence may not be altered upon review. (People v. Plantinga (1985), 132 Ill. App. 3d 512, 522, 477 N.E.2d 1299, 1306.) In order to modify a sentence within statutory limits, it must appear that the sentence imposed is a clear departure from the spirit and purpose of the fundamental law and the requirement of the constitution that the sentence be proportionate to the nature of the offense and measure possibilities for rehabilitation. (Plantinga, 132 Ill. App. 3d at 552, 477 N.E.2d at 1306.) Our supreme court has repeatedly emphasized the undesirability of a reviewing court substituting its judgment or preference as to punishment for that of the sentencing court. Plantinga, 132 Ill. App. 3d at 521-22, 477 N.E.2d at 1306.

We find that in the instant case the sentence imposed is within the statutory limits as well as within the terms of the plea agreement. We also find that the sentencing court considered the factors in mitigation as well as the factors in aggravation and adequately considered the defendant’s rehabilitative potential as well as the seriousness of the offense.

The court found that to impose probation in the instant case would deprecate the seriousness of the defendant’s conduct and would be inconsistent with the ends of justice. The court stated that, while it was not prepared to say that imprisonment was necessary for the protection of the public, the defendant’s continued denial of commission of the offense even after pleading guilty, his real lack of remorse, and his obvious posing and dramatic sighs and inability to take responsibility for what he had done justified a sentence of imprisonment. We agree with the sentencing court that, where a defendant will not take responsibility for his actions, especially involving a crime such as is involved here, his potential for rehabilitation is severely reduced and limited. The sentencing court did find that defendant’s imprisonment was necessary for the protection of the victim, the defendant’s 17-year-old daughter. The court found that the victim had been harmed psychologically or emotionally by the defendant’s conduct, despite the victim’s testimony that she rarely thought of the sexual abuse and had put it behind her. The victim was undergoing counseling. The trial court expressed the factors it found in mitigation and aggravation.

We find all of the findings of the sentencing court to be supported by the record. Even at the sentencing hearing after having pled guilty to the offense, defendant persisted in denying responsibility for the offense, instead blaming the victim for her “attitude.” As we said, we find that the defendant’s potential for rehabilitation is limited by his attitude.

We find no abuse of discretion in the trial court’s refusal to grant probation to this defendant. We find that the sentence imposed takes into consideration both the defendant’s potential for rehabilitation as well as the seriousness of the offense. The sentence imposed, four years’ imprisonment, is not excessive and does not constitute an abuse of discretion. Accordingly, we affirm the judgment of the circuit court of Fayette County.

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

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.