text:
    CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—90—0855
    Opinion filed September 30, 1991.

      William S. Hanley and Liesl G. Smith, both of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellant.
    Roland W. Burris, Attorney General, of Springfield (David L. Nixon, Special Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Commerce Commission.
    Claudon, Lloyd, Barnhart & Beal, Ltd., of Canton, and Grosboll, Becker, Tice, Alvarez & Smith, of Petersburg (Gary E. Barnhart and Jerry Tice, of counsel), for appellee Spoon River Electric Cooperative, Inc.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff in administrative review Central Illinois Public Service Company (CIPS) appeals a circuit court order which affirmed an order of the Illinois Commerce Commission (Commission). In its order, the Commission determined that CIPS is exclusively entitled to serve approximately 20 acres of the 100-acre site of a new State prison at Canton, and a competing electricity supplier, Spoon River Electric Cooperative (SREC), is exclusively entitled to serve the remaining 80 acres of the tract.

The prison tract was formerly a part of the 545-aere Gavenda farm. On the July 2, 1965, effective date of the Electric Supplier Act (ESA) (Ill. Rev. Stat. 1989, ch. lll2/3, par. 401 et seq.), CIPS provided service at one point on the farm, and SREC provided service at two points on the farm. Neither supplier at that time provided service on the portion of the farm which was to become the prison tract.

On June 19, 1968, the Commission approved a service-area agreement, entered into by CIPS and SREC, which provides in pertinent part:

“WHEREAS, the parties hereto, in order to avoid duplication of facilities and to minimize disputes between themselves which may result in inconvenience and diminished efficiency to the public, and in the public interest desire so to contract. ***
1. The parties hereto covenant and agree that each shall continue to be entitled to (a) furnish service to customers at locations which each was serving on July 2, 1965, (b) furnish service to customers or premises which it had agreed to serve under contracts in existence on July 2, 1965, and (c) resume service to any premises to which it had discontinued service in the twelve months preceding July 2, 1965, and on which are still located the supplier’s service facilities whether or not either such locations or premises are located within territory hereinafter delineated as its service area and each shall also continue to serve either such locations or premises as to which each has lawfully commenced service since July 2, 1965, and prior to the effective date of this agreement.
2. The parties hereto covenant and agree that [SREC] shall be entitled exclusively to serve all consumers with their electric service requirements in the area or areas designated as SREC on the maps hereto attached as Appendices 1 to 3, inclusive, and [CIPS] shall be entitled exclusively to serve all consumers with their service requirements in the area or areas designated as CIPS on said Appendices 1 to 3, inclusive, provided, however, that each party may continue to serve any locations or premises which it is entitled to serve under Paragraph 1 above even though such locations or premises be located in the areas designated on Appendices 1 to 3, inclusive, as the area of the other party ***.”

The maps appended to the service-area agreement establish that the 80 westernmost acres of the prison tract are in SREC’s designated service area, and the eastern 20 acres are in CIPS’ designated service area.

After the State announced plans to construct a new prison at Canton, both CIPS and SREC made efforts to be designated as the exclusive electricity supplier for the prison. Eventually, the Department of Corrections (DOC) chose not to select an electricity supplier for the new prison. Rather, DOC instructed CIPS to obtain a Commission determination of whether it or SREC should serve the prison. Accordingly, CIPS, on October 27, 1987, filed with the Commission a petition requesting a finding that it has an exclusive right to serve the new prison at Canton, and SREC, on August 31, 1988, filed a counterpetition requesting a determination of its right to serve the new prison.

Evidence presented at the hearing on CIPS’ petition and SREC’s counterpetition established that 87.4% of the square footage of the buildings at the Canton prison is within SREC’s service area designated in the CIPS-SREC service-area agreement, and 12.6% of the square footage is in CIPS’ service area. Furthermore, 92.9% of the prison’s total electricity usage will occur in SREC’s service area, while 7.1% of the prison’s electricity consumption will take place in CIPS’ service area. A map of the prison grounds reflects that the only structures entirely within CIPS’ service area are a guard tower, a boiler building, and a pump station. Portions of two wings of each of three residence halls are also within CIPS’ service area.

Before the prison was constructed, CIPS had three phase power lines paralleling the northern and western boundaries of the prison tract. Because of the existence of these lines, CIPS was capable of immediately providing service to the prison. SREC at that time had no similar facilities in proximity to the prison site, but it did have a single-phase power line running along the western boundary of the prison tract.

Before construction of the new prison began, DOC directed CIPS to provide temporary service to construction trailers on the site. Since then, CIPS has provided and continues to provide temporary electricity service to the prison tract.

In its order entered October 4, 1989, the Commission found that the CIPS-SREC service-area agreement controls resolution of the question of CIPS’ and SREC’s rights to serve the prison tract. The Commission further held that despite its preexisting service facilities on other portions of the Gavenda farm, CIPS has no grandfather rights to serve the prison tract which are superior to those of SREC. The Commission found that CIPS did not establish an exception under paragraph 2 of the service-area agreement which prevents Spoon River from serving the west 80 acres of the prison tract. The Commission further held that the City of Canton’s issuance of franchises to CIPS and SREC did not alter its conclusion regarding the rights of these two electricity suppliers under their service-area agreement. The Commission concluded that SREC is entitled to serve the portion of the Canton prison located in its service area (approximately the west 80 acres of the prison tract), “including without limitation the residence buildings which are substantially in” SREC’s service area, and CIPS is entitled to serve the remaining portion of the prison (approximately the east 20 acres of the prison tract). The Commission further ordered that neither supplier furnish electricity to DOC in the territory allocated to the other under the service-area agreement, except in the event of an outage of service provided by the other supplier.

Two members of the Commission filed a dissenting opinion. Among other things, they stated that the requirement in the Commission’s order that each supplier stand ready to serve the entire prison in the event of an outage on the other’s lines and the consequent necessity of each supplier installing transmission and distribution facilities capable of serving the entire prison violated the legislative intent expressed in section 2 of the ESA (Ill. Rev. Stat. 1989, ch. lll2/s, par. 402) of avoiding duplication of facilities of electricity suppliers.

Pertinent to the question of whether the Commission properly determined the rights of CIPS and SREC to serve the Canton prison are the following portions of the ESA:

“The General Assembly declares it to be in the public interest that, in order to avoid duplication of facilities and to minimize disputes between electric suppliers which may result in inconvenience and diminished efficiency in electric service to the public, any 2 or more electric suppliers may contract, subject to the approval of the Illinois Commerce Commission, as to the respective areas in which each supplier is to provide service.” Ill. Rev. Stat. 1989, ch. lll2/s, par. 402.
“Each electric supplier is entitled, except as otherwise provided in this Act or (in the case of public utilities) the Public Utilities Act, to (a) furnish service to customers at locations which it is serving on the effective date of this Act, (b) furnish service to customers or premises which it is not now serving but which it had agreed to serve under contracts in existence on the effective date of this Act, and (c) resume service to any premises to which it has discontinued service in the preceding 12 months and on which are still located the supplier’s service facilities.” Ill. Rev. Stat. 1989, ch. lll2/s, par. 405.
“Any 2 or more electric suppliers may contract together defining and delineating, as between themselves, one or more service areas in which each such contracting supplier shall be entitled to furnish service. Such contracts are subject to the approval of the Commission.” Ill. Rev. Stat. 1989, ch. lll2/s, par. 406.

A service-area agreement between electricity suppliers which the Commission has properly approved “controls] the rights of the parties to the agreement, to the exclusion of the [ESA], except insofar as the agreement incorporates the [ESA].” (Rural Electric Convenience Cooperative Co. v. Illinois Commerce Comm’n (1979), 75 Ill. 2d 142, 146, 387 N.E.2d 670, 672.) Clearly, the rights of CIPS and SREC to serve the Canton prison are controlled by the service-area agreement into which they entered.

CIPS asserts that the Commission erred in holding that it is precluded from serving the west 80 acres of the prison tract. CIPS contends that contrary to the Commission’s holding, it and SREC have an equal right to serve the entire tract. In other words, CIPS argues that DOC is entitled to select either it or SREC as the exclusive electricity supplier for the entire prison tract. CIPS’ basis for this argument is that the prison tract was formerly part of the Gavenda farm, on which it was providing service as of July 2, 1965. CIPS maintains that the entire farm — including the prison tract — is a “location” which it is entitled to continue serving under paragraph 1 of the service-area agreement.

The language of the service-area agreement here at issue, conferring “grandfather rights” to provide electricity to “locations” served as of the agreement’s effective date, is virtually identical to that contained in section 5 of the ESA (Ill. Rev. Stat. 1989, ch. lll2/3, par. 405) concerning “grandfather” service rights. Thus, it could be assumed that the parties to the service-area agreement intended that “locations” have the same meaning for purposes of the agreement as it does within the context of the ESA.

In Coles-Moultrie Electric Cooperative v. Illinois Commerce Comm’n (1979), 76 Ill. App. 3d 165, 167, 394 N.E.2d 1068, 1069, appeal denied (1980), 79 Ill. 2d 625, this court explained the meaning of “locations” for purposes of the ESA:

“In order to constitute a separate location, there must be some feature of the area in question which would set it apart from the surrounding parcels. A public road, a body of water, or a legal division (such as platting or subdividing the land) all could serve to distinguish one location from the surrounding area.”

The difficulty with defining “locations” in this same manner for purposes of the CIPS-SREC service-area agreement is that Coles-Moultrie was decided in 1979, more than 10 years after CIPS and SREC entered into their agreement. For this reason, we cannot say with certainty that the parties to the CIPS-SREC service-area agreement intended the word “locations,” as used in the agreement, to have the same meaning as this court attributed to it in interpreting the ESA in 1979.

Because it is possible to attribute various meanings to the word “locations” as used in the service-area agreement at issue in this case, that term of the agreement is ambiguous. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797, 461 N.E.2d 1031, 1034.) Parol evidence may be considered in interpreting ambiguous contractual terms. (Lewis v. Board of Education of North Clay Community Unit School District No. 25 (1989), 181 Ill. App. 3d 689, 701, 537 N.E.2d 435, 443.) The only parol evidence presented to the Commission regarding the meaning of the term “locations” as used in the CIPS-SREC service-area agreement is the prepared testimony (tendered by SREC) of Thomas H. Moore, executive vice-president and general manager of the Association of Illinois Electric Cooperatives (AIEC). Moore testified that the service-area agreement here at issue is identical to a model service-area agreement which the AIEC negotiated with CIPS on behalf of its member cooperatives. Moore stated that the committee which negotiated this agreement reported to him in his capacity of general manager and that he coordinated the committee’s activities. Moore testified as follows concerning his understanding of the meaning of the term “locations” as used in the model service-area agreement:

“QUESTION: As the General Manager of the AIEC[,] to whom [the] Power Supply Committee reported, what was your understanding of the use of the word ‘location’ in the Service Area Agreement in general and in Par. 1 in particular?
ANSWER: I believe that the parties intended the word ‘location’ to mean exactly what that word means to a common ordinary person who is able to speak and understand the English language.
QUESTION: Could you please explain that further for the Commission?
ANSWER: It was my understanding that the AIEC and CIPS intended in negotiating the Service Area Agreement that a ‘location’ under this agreement would mean that particular location that was being served on July 2, 1965 as is provided for in Par. 1. By that, I mean to say that, for example, if a farmer owned a quarter section, consisting of 160 acres, and if he had a house located on the East 80 acres of that 160 acre tract and if the co-op. was providing electrical service to that house and had the East 80 acres of the 160 under the Service Area Agreement and CIPS had the West 80 acres of the 160 under the Service Area Agreement, then if new service were established in the West 80 acres, CIPS would get that load. Each of the co-ops., with the help of the AIEC, spent a great amount of time, as did CIPS, filing maps with the Commission showing the ‘locations’ that they were serving on July 2, 1965 in order that the boundaries could be accurately drawn so that, as new service developed in the future, there would be little doubt as to who was entitled to serve.”

CIPS argues that Moore’s testimony cannot be considered by this court because the Commission totally ignored it and made no reviewable findings of fact on the basis of it. However, the Commission is not required to make particular findings as to each evidentiary fact or claim. (United Cities Gas Co. v. Illinois Commerce Comm’n (1970), 47 Ill. 2d 498, 501, 265 N.E.2d 608, 610; Lefton Iron & Metal Co. v. Illinois Commerce Comm’n (1988), 174 Ill. App. 3d 1049, 1055, 529 N.E.2d 610, 614.) Furthermore, the Commission stated in its order in this case that it considered all of the evidence presented. For these reasons, we may rely upon Moore’s testimony in determining the meaning of the term “locations.”

The testimony of Thomas Moore, which is the only evidence relevant to the meaning of the term “locations” as used in the CIPS-SREC service-area agreement, establishes that the parties to the agreement intended this term to have its commonly accepted meaning — a particular point at which electricity is being supplied, rather than an entire farm or tract of land on which there is at least one service point. Thus, under the terms of the service-area agreement, CIPS and SREC providing service to particular points on the Gavenda farm did not confer upon them “grandfather” rights to serve the entire farm. Rather, the right to serve points on the farm other than those actually being served on July 2, 1965 — including the prison tract — is controlled by the provisions of the service-area agreement which allocate exclusive service areas. The Commission therefore did not err in concluding that CIPS and SREC are entitled to provide permanent service only to those parts of the prison tract which are within their service areas as defined in the service-area agreement.

Our holding is not contrary to the decision in Coles-Moultrie Electric Cooperative v. Illinois Commerce Comm’n (1985), 131 Ill. App. 3d 946, 476 N.E.2d 1303, in which this court held that two electricity suppliers have equal rights to serve a particular tract of land located in the City of Areola. There was no service-area agreement which affected the rights of the two suppliers to serve that tract. In the present case, by contrast, the question of which supplier is entitled to serve the prison tract is governed by a service-area agreement.

CIPS contends that the Commission’s order will result in an impermissible duplication of electricity distribution facilities because SREC will have to construct new lines and facilities to serve the Canton prison, while CIPS already has adequate facilities in the area. SREC asserts that CIPS waived this argument by failing to present it to the circuit court. Contrary to SREC’s contentions, CIPS did properly preserve this point for review by including it in its complaint for administrative review. CIPS’ duplication of facilities argument is, however, without merit.

Both section 2 of the ESA (Ill. Rev. Stat. 1989, ch. lll2/3, par. 402) and the CIPS-SREC service-area agreement contain precatory language expressing a preference for avoiding duplication of electricity distribution facilities. There is, though, nothing in the service-area agreement which explicitly precludes a duplication of facilities. It must be assumed that when a service-area agreement is executed, the parties have a full understanding of what present and contemplated service facilities they have in and near the areas allocated to them, and that they intend to abide by the terms of the agreement, despite the presence of facilities in or near an area allocated to the other supplier. Thus, the fact that CIPS has facilities capable of immediately serving the entire needs of the Canton prison in close proximity to the prison tract, but SREC may have to construct some new facilities in order to serve the tract, is of no consequence in determining the service rights of SREC and CIPS under their agreement.

In its briefs and at oral argument, CIPS suggested that the Commission erred in ordering it to construct and maintain facilities adequate to provide power to the 80 acres of the prison tract to be served by SREC in the event of an outage in SREC’s service. CIPS contends that this requirement likewise will result in an impermissible duplication of electricity distribution facilities. CIPS refers to no evidence which establishes exactly what additional equipment or facilities it must install in order to provide backup service to the portion of the prison tract to be served by SREC. At oral argument, SREC suggested that CIPS will have to make no additional investment in order to be able to provide this service.

The appellant has the burden of providing citations to the record which support its position. Where there are no references to portions of the record which support an argument for reversal, the reviewing court need not consider that argument. (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 802, 405 N.E.2d 1051, 1060.) Because CIPS provided no citations to portions of the record establishing the additional equipment or facilities, if any, which it will need to install as a result of the portion of the Commission’s order requiring it to provide backup service in the event of an emergency, we need not consider CIPS’ contention that this portion of the order will result in an improper duplication of electricity distribution facilities.

We affirm the circuit court order which affirmed the order of the Illinois Commerce Commission.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILBUR T. JONES, JR., Defendant-Appellant.
    Fourth District
    No. 4—91—0245
    Opinion filed September 30, 1991.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant appeals from the denial of his motion to withdraw his guilty plea to one count of aggravated battery with a firearm. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.2.) He contends he was denied effective assistance of counsel at the motion to withdraw the plea because his trial attorney raised and argued his own ineffectiveness at the hearing. We affirm.

An information filed December 13, 1990, charged defendant with attempt (first-degree murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1) and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12— 4(bXl)). On February 13, 1991, a third charge was added alleging defendant committed aggravated battery with a firearm (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.2). The defendant pleaded guilty on February 19, 1991, to aggravated battery with a firearm and, pursuant to the plea agreement, the court dismissed the other charges. Matthew Maurer, court-appointed counsel, represented defendant.

At the plea hearing, the court carefully explained the defendant’s rights to him. The defendant stated he understood his rights and the ramifications of waiving them. Specifically, the court asked about legal representation:

“THE COURT: You have the right to be represented by an attorney. Are you satisfied with the representation Mr. Maurer has provided you?
THE DEFENDANT: Yes, sir.”

The defendant also indicated no threats or promises had been made to induce him to plead guilty. The court found the defendant voluntarily waived his rights. The court accepted the guilty plea and sentenced the defendant to seven years’ imprisonment.

On March 3, 1991, the defendant, through Maurer, filed a motion to withdraw his guilty plea. Maurer wrote and filed the motion which included a claim defendant was confused when he entered his guilty plea and inadequately represented by counsel.

At the March 12 hearing on the motion to withdraw the guilty plea, the only statement Maurer made to the court consisted of a brief summary of the written motion and the following comment:

“I think [defendant] probably can indicate better than I could as to — as far as what his confusion was and what his beliefs are as far as myself not adequately representing him than I probably could.”

Only the defendant testified at the hearing. On direct examination by Maurer, the defendant claimed he was confused when he entered his plea and did not know what to do, “other than I was told that this would be best for me to take this.” In response to a question about his claim of ineffective representation, the defendant stated:

“Well, every time I turn around you was saying it would be best if I took some time, you know. First it was eight years, then it was seven years. You never even — every time I would point something out to you, you know, any kind of something concerning the case, you was like well, that’s nothing, and like you wasn’t even going to really represent me, like you was just, you know — like you was just there and my case was there and then there was things you didn’t even know. I pointed out in pieces of my case, papers that I had from the motion from discovery which I still ain’t got back, that then, you know, you said you didn’t know nothing about it, well, I ain’t got this piece of your papers, you know, and then when I try to explain to you about something that occurred earlier, before the incident occurred where the victim had got shot, I mean I had brought that to your attention, some things that occurred and you never even checked into none of that. You know, I was asking you to check into things and you had never checked into them.”

After cross-examination by the State, the court questioned the defendant.

“THE COURT: And do you remember when you entered your plea of guilty my asking you if you were satisfied with the representation of Mr. Maurer? Do you remember my asking you that?
THE DEFENDANT: Uh-huh.
* * *
THE COURT: What was that?
THE DEFENDANT: I believe yes.
THE COURT: Well, we don’t do things twice just because you want to. Motion denied.”

On appeal, defendant argues there is a per se conflict of interest when an attorney raises his own ineffectiveness. Due to this conflict, the defendant claims he was denied effective assistance of counsel at the hearing on the motion to withdraw his guilty plea. He urges this court to vacate the trial court’s order and remand for a new hearing on the motion to withdraw.

The Illinois Supreme Court decided People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045, in 1984. The defendant in Krankel was found guilty of burglary. Defense counsel subsequently moved for a new trial. The defendant filed a pro se motion for a new trial repeating the assertions in counsel’s motion and asserting ineffective assistance of counsel, based on counsel’s refusal to present an alibi defense and investigate defendant’s whereabouts at the time of the offense. The trial court denied all post-trial motions. On appeal, the parties agreed the trial court should have appointed a different attorney to represent the defendant at the post-trial hearing on his claim of ineffective assistance of counsel. The supreme court agreed.

Appellate courts have refused to interpret Krankel as holding there is a per se conflict of interest any time an attorney raises his own ineffectiveness. “We do not interpret the holding in Krankel to establish a per se rule that all pro se motions for new trial by defendants alleging ineffective assistance of trial counsel mandate appointment of new counsel to assist in the motion irrespective of the basis of the motion and in the absence of a request for new counsel.” (People v. Mallette (1985), 131 Ill. App. 3d 67, 75, 475 N.E.2d 237, 243; see also People v. Jackson (1985), 131 Ill. App. 3d 128, 139, 474 N.E.2d 466, 474.) There is no per se rule requiring appointment of new counsel to represent a defendant on his claim of ineffective assistance of trial counsel, particularly when the defendant does not request a new attorney. People v. Davis (1986), 151 Ill. App. 3d 435, 442-43, 502 N.E.2d 780, 785.

While the motion to withdraw the plea here was prepared and filed by counsel, it is apparent the motion was filed at the behest of defendant, who had apparently complained to his counsel of confusion and inadequate representation. We do not believe this poses a per se conflict. Defendant was permitted to testify on his contention and his counsel did not make any arguments to refute the contention. In our view, this is analogous to the defendant filing a pro se motion and Mallette and Jackson are applicable.

We reject defendant’s claim of a per se conflict of interest, and now address the merits of this case. The Third District Appellate Court faced a similar situation in People v. Taylor (1986), 146 Ill. App. 3d 45, 496 N.E.2d 263. There, defense counsel drafted the post-trial motion alleging his own ineffective assistance of counsel due to failures to make timely objections and motions. On appeal, the defendant argued counsel operated under a per se conflict of interest at the post-trial motion hearing. Defendant argued the situation was analogous to situations where one assistant public defender argues the ineffectiveness of another assistant public defender from the same office. The Illinois Supreme Court has held such situations do present a conflict of interest. See People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169; People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923.

The third district disagreed with defendant and instead held the situation was more similar to cases where the defendant raises the issue pro se and counsel is thus forced to argue his own incompetence. “In such cases, a per se conflict does not exist. A conflict is determined by examining the underlying allegations of incompetence.” Taylor, 146 Ill. App. 3d at 53, 496 N.E.2d at 268; see also Davis, 151 Ill. App. 3d at 443, 502 N.E.2d at 785; People v. Johnson (1981), 98 Ill. App. 3d 228, 232, 424 N.E.2d 610, 614.

The allegations of incompetence levelled by defendant at the hearing on the motion to withdraw are not clear or specific. We are not certain what defendant was trying to allege. A defendant claiming ineffective assistance of counsel bears the burden of showing counsel’s performance was deficient and the deficient performance prejudiced him. (Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) Even before the decision in Strickland, courts required claims of ineffective assistance of counsel “at least be substantiated in some way by factual allegations.” (People v. Clem (1979), 72 Ill. App. 3d 163, 169, 390 N.E.2d 615, 619.) Defendant did not make clear his claims of incompetence and did not substantiate them with factual allegations. He was not deprived of effective assistance of counsel at the hearing on the motion to withdraw the guilty plea.

The cases defendant relies upon are distinguishable. In People v. Willis (1985), 134 Ill. App. 3d 123, 479 N.E.2d 1184, the defendant pleaded guilty to burglary. He was represented at trial by a court-appointed public defender. Counsel later filed a motion to withdraw the guilty plea and vacate the judgment because the plea was entered involuntarily. The defendant filed a pro se motion to withdraw his plea and vacate the judgment and asserted ineffective assistance of counsel. Counsel then filed an amended motion which included the ineffective assistance claim and a claim the State reneged on a sentencing promise. Trial counsel represented the defendant at the post-trial motion hearing. Only the defendant testified, though in the process of examination the defendant asked counsel several questions regarding his “rap sheet,” which counsel answered. The defendant claimed counsel told him to accept the plea agreement offer because, with his criminal record, the court would be justified in imposing a greater sentence. The record or rap sheet used at trial was not the defendant’s and he denied, at the post-trial hearing, the mix up was clarified before he entered his plea. The appellate court held:

“The circumstances surrounding the incorrect rap sheet, and the extent to which counsel’s advice to his client was premised on what might happen if he insisted on a trial, was something that should have been explored fully during the hearing. Because it was counsel’s performance below that was at issue, however, we believe a per se conflict of interest existed ***.” Willis, 134 Ill. App. 3d at 132, 479 N.E.2d at 1190.

The case is distinguishable because the defendant in Willis clearly stated the basis for his claim of ineffective representation and substantiated it with factual allegations. People v. Williams (1988), 176 Ill. App. 3d 73, 530 N.E.2d 1049, is likewise distinguishable.

To the extent defendant has advanced a claim of ineffective assistance of counsel, the trial court was in a good position to evaluate that claim. Defendant did not claim there were witnesses who were not interviewed, or an alibi unexplored. Defendant did not claim he was misadvised. In sum, he claimed there were things he said or asked about that his attorney did not reply to in a satisfactory way.

The trial court at the original plea fully complied with Supreme Court Rule 402 (134 Ill. 2d R. 402), and specifically inquired about defendant’s satisfaction with his representation by counsel. Defendant admitted he previously stated he was satisfied with defense counsel’s performance. When given the opportunity at the hearing on the motion to withdraw to state his position, he made no specific allegations of ineffective assistance. There were no specific factual matters alleged that would require the appointment of new counsel to evaluate and present defendant’s claim.

The defendant was not denied effective assistance of counsel at the hearing on his motion to withdraw his guilty plea simply because his attorney raised his own ineffectiveness. No claim by defendant required the appointment of new counsel. The trial court properly denied the motion to withdraw.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN BUCKNER, Defendant-Appellant.
    Fourth District
    No. 4—91—0033
    Opinion filed September 30, 1991.
    Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Charles F. Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Stephen Buckner, indicted for murder, was convicted of involuntary manslaughter for the stabbing death of Keith Stefanick and sentenced to 10 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3.) Defendant appeals, contending he was denied a right to present a defense based on excluded evidence of the decedent’s HIV-positive status, which would have corroborated his claim of justifiable use of deadly force to prevent commission of the forcible felony of criminal sexual assault. We affirm.

On the morning of January 19, 1990, the defendant and two other men were together in the defendant’s apartment drinking and listening to music. When the decedent telephoned defendant’s apartment, defendant handed the phone to one of the other men. Defendant stated he had not wanted to be bothered by the decedent, who had in the past persistently called or stopped by defendant’s apartment unannounced and expressed a desire to be defendant’s lover. Shortly thereafter, the decedent showed up uninvited at defendant’s apartment and apparently walked in. All four men present in defendant’s apartment were either homosexual or bisexual. The decedent and the defendant had a conversation which the other witnesses were not able to hear. Defendant did not want the decedent at his apartment, but he did not try to forcibly remove him because he did not want to make a scene. Each of the two witnesses testified decedent followed the defendant into the bedroom, and when the decedent emerged, he started to put on his coat as if to leave, but then apparently changed his mind and made himself another drink.

Defendant testified that while in the bedroom, decedent accused him of planning to have sex with the two other men. Defendant told the decedent he had the wrong idea and told him to leave. Defendant then left the bedroom and went to the bathroom. He thought decedent was leaving, but instead decedent followed him to the bathroom and — according to defendant — “got persistent about this sex thing.” Decedent said, “Well, you are going to whether you like it or not.” Defendant left the bathroom and went into the kitchen. Decedent never touched defendant in the bedroom or the bathroom, and defendant never told the other two men that decedent was pressing him for sex. Defendant never claimed he perceived decedent’s remark as a threat.

Defendant testified the decedent followed him into the kitchen and grabbed defendant’s genitals. Defendant pushed the decedent backward four or five feet, but then noticed decedent looking at the block of kitchen knives as he moved toward defendant. Defendant grabbed a knife and held it out, and decedent came right at him. The next thing defendant knew, there was body contact with the knife. Defendant had picked up the knife to scare decedent and make him leave, and had not intended to hurt him. This single knife wound caused decedent’s death.

Prior to trial, the circuit court granted the State’s motion in limine barring disclosure of the postmortem finding that decedent was infected with the HIV virus or testimony as to other witnesses’ suspicions decedent was so infected unless defendant submitted an offer of proof on its relevancy. Defendant argued the HIV evidence was relevant to the issue of self-defense in showing defendant’s state of mind, i.e., he reasonably believed the decedent was infected with HIV and this belief corroborated his fear of a sexual assault by the decedent, which in turn necessitated the use of deadly force to prevent a forcible felony. The defendant referred to the statute on criminal transmission of HIV (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16.2)—in passing — as evidence of a forcible felony, but focused primarily on the possibility of sexual assault as the forcible felony (see Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(1), (b)). With the exception of defendant’s prospective testimony that the decedent grabbed the defendant’s genitals through his clothing while defendant was in the kitchen, defendant submitted no offer of proof his actions were in prevention of the forcible felony of sexual assault. The defendant’s theory in offering proof against the motion in limine was essentially that his suspicion the decedent carried the infectious virus corroborated his fear of a sexual assault and thereby justified the use of deadly force to prohibit any possible further physical contact by decedent. In granting the motion in limine, the court made clear defendant was not prohibited from eliciting any evidence of sexual overtures or advances by the decedent.

The State first argues defendant’s motion for a new trial lacks the specificity of grounds required to preserve a challenge to the ruling on the motion in limine pursuant to section 116 — 1(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 116— 1(c)). The State takes exception to defendant’s post-trial motion, reading in pertinent part as follows:

“1. That the Court improperly refused to admit evidence on behalf of the Defendant which showed that the deceased, KEITH STEFANICK, a/k/a KEVIN MCHENRY, tested positive for the HIV virus, had shown visible signs of infection with the HIV virus, and that the Defendant, STEVEN BUCKNER, believed that the deceased was infected with the HIV virus.
2. That this evidence would have been relevant to the issue as to whether the Defendant’s use of deadly force to prevent an attack was reasonable, and whether the Defendant’s initial procurement of the weapon was justified.”

The State claims defendant’s allegations of error are impermissibly broad and nonspecific and are therefore waived, citing People v. Bailey (1979), 77 Ill. App. 3d 953, 404 N.E.2d 258. In that case, the court found the post-trial motion, alleging only that “ ‘[t]he court erred in admitting improper evidence,’ ” so general as to be meaningless. (Bailey, 77 Ill. App. 3d at 955, 404 N.E.2d at 259.) In this case, defendant has asserted specific grounds of error (excluded evidence of decedent’s HIV status and its relevance to the issue of self-defense). Therefore, the issues presented in the post-trial motion are preserved for review.

In determining whether the excluded evidence was relevant to any facts elicited at trial or to defendant’s claim of self-defense, a review of the pertinent statutes is in order.

“Use of Force in Defense of Person. A person *** is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent *** the commission of a forcible felony.” Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.
“ ‘Forcible felony.’ *** [MJeans *** criminal sexual assault, *** aggravated battery resulting in great bodily harm *** and any other felony which involves the use or threat of physical force or violence against any individual.” Ill. Rev. Stat. 1989, ch. 38, par. 2 — 8.
“Aggravated Battery. ***
(b) A person who, in committing a battery, commits aggravated battery if he either:
(1) Uses a deadly weapon other than by the discharge of a firearm.” Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(1).
“Criminal Sexual Assault, (a) The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force.” (Ill. Rev. Stat. 1989, ch. 38, par. 12— 13(a)(1).)

The affirmative defense of use of force in defense of person is properly raised by a showing of some evidence as to all the elements of the defense. See People v. Torres (1977), 47 Ill. App. 3d 101, 361 N.E.2d 803; People v. Adams (1969), 113 Ill. App. 2d 205, 252 N.E.2d 35.

At trial, defendant’s theory of the case focused both on accident or justifiable use of force to prevent commission of a felony, but he did not identify the forcible felony prevented. At the instruction conference, defense counsel claimed his theory of self-defense was based on the forcible felony of aggravated battery — rather than on criminal sexual assault. The jury received instructions on aggravated battery, self-defense in prevention of a forcible felony and the definition that “ ‘forcible felony’ means aggravated battery.” There was no request by defendant for a jury instruction that a forcible felony includes criminal sexual assault. None of the testimony from any of the witnesses at trial supported the notion the decedent was acting in commission of either aggravated battery or criminal sexual assault.

Absent a showing of some evidence of a manner of transmission to defendant such as criminal sexual assault, decedent’s HIV status and defendant’s belief decedent was infected, reasonable or otherwise, was not relevant. Absent some evidence defendant subjectively believed he was in danger of being the victim of the forcible felony of sexual assault, the HIV evidence was irrelevant. Since defendant’s belief the decedent was infected with the HIV virus in itself creates no necessity or legal justification for the use of deadly force absent criminal conduct which might transmit the virus, the decedent’s HIV status has no relevance to any issue of self-defense. Defendant at no time claimed he believed a forcible sexual assault was initiated or threatened by decedent. Therefore, he could not have believed he was in danger of having the HIV virus transmitted to him by decedent’s commission of the battery of grabbing defendant’s groin. Had defendant shown he reasonably believed he was in danger of a criminal sexual assault by decedent, and the jury found the evidence credible, this would have constituted a complete defense. See Ill. Rev. Stat. 1989, ch. 38, pars. 7-1, 2-8, 12-13(a)(l).

A trial court’s evidentiary findings will not be disturbed unless manifestly against the weight of the evidence. (People v. Cheek (1982), 93 Ill. 2d 82, 94, 442 N.E.2d 877, 882.) Where the relevance of evidence depends on inferences which have no foundation in the evidence, such evidence is inadmissible. (People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011, 1015; People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592.) The inference defendant now argues on appeal — that the excluded HIV evidence supported his belief he was in danger of a criminal sexual assault — is not supported by the evidence. At trial defendant never claimed this was the forcible felony he sought to prevent. The ruling on the motion in limine precluded reference to the decedent’s infectious status but did not preclude use of all the evidence for a self-defense theory based on commission of the forcible felony of criminal sexual assault.

Instead, defendant focused on the theory the stabbing was accidental or in self-defense of an aggravated battery, and the jury determined by its verdict of involuntary manslaughter that defendant was not lawfully justified in his use of deadly force. Defendant’s proposed self-defense theory is an attempt to elevate decedent’s infectious status to a justification for the use of deadly force, in lieu of conduct by decedent engendering a reasonable belief that such force was necessary. There is no such legal defense. Decedent’s HIV status was not shown to be relevant, and its exclusion was proper.

The decision of the Sangamon County circuit court is affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    SATINDER S. REKHI, Plaintiff-Appellant, v. WILDWOOD ENTERPRISES, INC., d/b/a Wildwood Industries, Inc., Defendant-Appellee.
    Fourth District
    No. 4—91—0295
    Opinion filed September 30, 1991.

      Mark D. Howard, of Peoria, for appellant.
    Don C. Hammer and James P. Ginzkey, both of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Satinder S. Rekhi appeals from the order of the circuit court of McLean County dismissing count I of his amended complaint against defendant Wildwood Enterprises, Inc., with prejudice. We reverse.

On December 12, 1988, plaintiff filed a wage-claim application with the Illinois Department of Labor (Department) pursuant to the Illinois Wage Payment and Collection Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 39m — 1 et seq.). Plaintiff’s application alleged that defendant owed him $55,770 in vacation, bonus, and severance pay. On May 16, 1989, a hearing on plaintiff’s claim was conducted before a hearing officer of the Department. Although there is no record of this proceeding, plaintiff’s wife, Manmohan Rekhi, filed an affidavit in connection with this cause, stating that she attended the May 16, 1989, departmental hearing and recalled the hearing officer’s indication “that the claim was only for matters under the Wage Claim Act and matters at issue at the hearing would not include anything regarding the one year salary.”

Following the hearing, the Department issued a wage-payment demand to defendant in the amount of $6,407.90. In addition to demanding compliance by the defendant, the letter discussed penalties for failure to comply and stated that the Department’s decision was based solely on the Act. The letter concluded by advising defendant, “Your compliance with this Demand Order will not bar any other civil or criminal remedy which may be available to you or the claimant.” Plaintiff contends that the amount demanded roughly reflects the claimed vacation and bonus pay, and fails to include the one-year salary to which he is entitled. Defendant’s request for a rehearing before the Department was denied.

On March 9, 1989, plaintiff filed a complaint in the circuit court of McLean County. Count I of plaintiff’s complaint alleged that defendant breached an employment contract “in that [defendant] terminated Plaintiff’s employment and refuses to pay severance pay in the sum of $47,944, and bonus and vacation pay in the sum of $7,376 or any part thereof to Plaintiff, although such payment has been duly demanded.”

In response to plaintiff’s complaint, defendant filed a motion for involuntary dismissal of plaintiff’s action pursuant to section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). Defendant contended that plaintiff’s claim with the Department constituted “another action pending between the same parties for the same cause” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(3)).

Plaintiff then filed an amended complaint, reasserting the allegations in count I. Plaintiff’s amended complaint additionally contained a second count, alleging an “independent tort,” and a third count alleging that defendant wrongfully converted plaintiff’s cash and personal property. Plaintiff also filed the affidavit of Russell Syracuse, chief hearing officer for the Fair Labor Standards Division of the Department. Syracuse indicated that proceedings under the Act are not hearings to adjudicate the rights of the parties, but are informal investigations to determine what action, if any, the Department will take on a claimant’s behalf. Syracuse further stated that the claimant is free to litigate his own claim independent of the Department’s determination and the employer is free to ignore the Department’s determination. He explained that no formal record of the proceedings is maintained, and the proceedings, being investigatory in nature, are not subject to administrative review. He added, “There are no rules or regulations governing the Department’s investigatory procedures or re-hearing procedures because they are not adjudicatory but investigatory in nature.”

The record also contains a written finding by a hearing referee for the benefit appeals subdivision of the Department. The finding states that plaintiff “was not discharged due to misconduct connected with his work.”

By order dated July 12, 1990, the trial court struck various portions of the affidavit of Russell Syracuse as conclusions of law. The trial court also concluded that plaintiff elected his remedy by filing his complaint with the wage claims division of the Department and pursuing it to a final adjudication. Accordingly, the court determined that the doctrine of res judicata barred the plaintiff from seeking a second determination of the controversy and granted defendant’s motion to dismiss count I of the plaintiff’s amended complaint with prejudice.

Plaintiff filed a motion for the trial court to reconsider its decision in light of this court’s decision in Miller v. J.M. Jones Co. (1990), 198 Ill. App. 3d 151, 555 N.E.2d 820. The court denied plaintiff’s motion. On April 12, 1991, the trial court issued an order pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), stating that there is no just reason for delaying enforcement or appeal of its order.

On appeal, plaintiff contends that the Department’s proceedings under the Act have no res judicata effect. We agree. Res judicata prohibits repetitive litigation in an effort to obtain judicial economy and to protect litigants from the burden of retrying an identical cause of action with the same party or a privy. Under the doctrine, a final judgment rendered by a court of competent jurisdiction on the merits bars absolutely a subsequent action involving the same cause of action or issue between the same parties or their privies. The res judicata effect also affixes to administrative determinations that are judicial in nature. Pedigo v. Johnson (1985), 130 Ill. App. 3d 392, 394, 474 N.E.2d 430, 432, appeal denied (1982), 91 Ill. 2d 572.

This court has previously addressed whether the Department’s proceedings under the Act are judicial in nature. In Miller, the plaintiff requested assistance from the Department, contending that he had been deprived of certain wages by the defendant, J.M. Jones Company. The Department conducted an investigation pursuant to the Act, determined that defendant owed plaintiff $498.32, and issued a wage payment demand to the defendant. Although defendant was served with notice of the Department’s proceedings, defendant did not participate.

Plaintiff then brought an action in the small claims division of the circuit court of Champaign County. The Department proceeding was established by a request for admission pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216) and was the sole evidence introduced by the plaintiff in the trial court proceedings. Plaintiff argued that the Department’s determination established the debt owed by the defendant to the plaintiff. The trial court held that plaintiff failed to meet his burden of proof and that the determination of liability would have to be made by a trial de novo. Upon motion, plaintiff’s complaint was dismissed with prejudice. Plaintiff appealed, contending that the determination under the Act was in the nature of a judicial proceeding and must be treated as such in subsequent litigation.

This court reviewed plaintiff’s claim in light of sections 11 and 14 of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 39m — 11, 39m — 14), and held as follows:

“We note [section 11], which provides the Department with ‘powers,’ makes no provision for a judicial determination. The ‘attempt’ equitably to adjust controversy (section 11(a)) and the power to take assignments of wage claims and prosecute actions for collection of wages (section 11(b)) clearly indicates the absence of judicial or administrative determination powers. Section 11(c) says nothing more than that the claimant, as well as the Department, can proceed in the trial courts. ***
Section 14(b) is the only part of the Act which might indicate the existence of a right of the Director of Labor to make a binding determination. Basically, the Act refers to assisting, representing, and protecting the employee’s interests. Representation of the employee and serving as the ultimate fact finder is inconsistent with due process.
Provisions of a statute should be construed in light of the statute as a whole. [Citation.] The Act does not contain provisions for impartial adjudication, nor does it provide review procedures. The criminal provisions in section 14(c) necessarily require any prosecution in the trial courts with the burden of proof of beyond a reasonable doubt being upon the prosecution.
A reasonable interpretation of the Act requires a finding that while certain penalties and interest provisions may run from the Department’s initial determination of liability, actual liability, if contested, must be determined by the trial court. The initial determination of the Director of Labor cannot be used to establish liability in the trial court.” Miller, 198 Ill. App. 3d at 154-55, 555 N.E.2d at 822-23.

The Miller decision makes it abundantly clear that the Department’s proceedings pursuant to the Act are not judicial in nature and, thus, have no preclusive effect in subsequent civil or criminal litigation. Accordingly, we conclude that the trial court erred in dismissing count I of plaintiff's amended complaint.

Reversed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE McDADE, Defendant-Appellant.
    Fourth District
    No. 4—91—0111
    Opinion filed September 30, 1991.

      Stephen R. Frank, of Johnson, Frank, Frederick & Walsh, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant, Wayne McDade, was convicted of two counts of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13) following a jury trial in Champaign, Illinois. Defendant was sentenced to two 7-year terms of imprisonment to run consecutively. Defendant takes a direct appeal from his conviction and sentence, asserting the evidence was not sufficient to prove him guilty beyond a reasonable doubt of vaginal and anal penetration by force, the trial court erred in allowing the victim’s sister to testify regarding statements made by the victim to her, consecutive terms of imprisonment were not proper, and the trial court abused its discretion in sentencing him to two consecutive seven-year terms. We affirm.

Count I of the indictment alleged defendant committed an act of sexual penetration by the use of force in that he inserted his penis into the vagina of the victim. Count II alleged defendant committed an act of sexual penetration by the use of force in that he inserted his penis into the anus of the victim. Defendant admitted to having sexual intercourse with the victim but asserted the defense of consent.

On August 10, 1990, the victim went with her friend, D.F., to the Silver Bullet in Urbana, Illinois. The victim testified they sat at the bar listening to the band and eventually began a conversation with three men seated at a table in front of them. Defendant was one of these three men to whom the victim began speaking. The victim testified she was drinking beer that night although she could not recall how much she consumed. Defendant was also drinking beer. The victim testified the men wore matching softball uniforms and defendant told her his name was Wayne. Defendant did not state his last name. The victim, D.F., defendant, and his two friends danced until approximately 1:15 a.m. when the bar closed. At that time, the victim, defendant, and another man, Tim Kimmer, decided to go have breakfast at the local Steak ’N Shake restaurant. D.F. did not go to breakfast with the other three people. The victim testified she rode with defendant to the restaurant while Tim drove his own car. Steak ’N Shake was not serving breakfast at that time, so they drove to Taffies, which is located in Champaign. Defendant and the victim did not eat, but drank coffee while Tim ate breakfast. The victim and defendant got back into his car and the victim testified she believed defendant was going to take her home.

Defendant drove in the general direction of the victim’s home, but then turned onto a country road north of the interstate highway. The victim testified she asked defendant where he was going and he allegedly told her he knew a shortcut to her house. Defendant eventually stopped the car to relieve himself. The victim testified defendant approached the car on the passenger side after urinating and said to her that she was used to having things “her way” and now he was going to have it “his way.” The victim testified she got out of the car and told defendant she had to go to the bathroom. Defendant told her not to leave when she got out of the car. She got out of the car and defendant stood right next to her as she attempted to urinate. Thereafter, the victim got back into the car because defendant told her he was only joking and was going to take her home.

The victim testified defendant then told her that she needed to cooperate with him and then he pinned her arms and legs behind her back. Defendant had already pulled up her clothing when they were standing outside the car. At this point, the victim was lying on the front seat of the car and still had her clothes on. Eventually, all of her clothing was removed by defendant. The victim testified defendant threatened to break her arms and legs if she did not cooperate. Defendant also indicated he knew karate. The victim testified defendant grabbed her throat with one hand, with his thumb on one side of her neck and his four fingers on the other side. She further testified defendant stated if she did not cooperate, he would take her to his friends, who would also have sexual intercourse with her and hurt her worse than he would. The victim testified defendant then forced her to have vaginal intercourse. She testified defendant next attempted to have her perform oral sex but was unsuccessful because she refused to remove her hand from her mouth. Finally, the victim testified defendant then rolled her over onto her stomach and had forced anal intercourse. The victim was unsure whether defendant ejaculated.

Thereafter, the victim testified that on the way back into town, defendant said the next time they would see each other would be in court. She stated she was crying and he told her to get dressed while they drove back into town. Defendant allegedly told the victim he was sorry and that this happens when he drinks. The victim testified he had given her a business card earlier in the evening and on the way home demanded to have it returned to him.

Defendant dropped the victim off approximately V-k blocks from her apartment. The victim testified she ran home, woke up her sister, and immediately told her what had happened. Her sister phoned the police, who came to the house. The victim gave them a description of defendant’s car and the address where she believed he had said he lived. The victim was taken to Carle Clinic in Champaign, where she was examined.

The following day, the victim accompanied a deputy to a trailer park where the defendant was believed to reside. She identified a car that appeared to look like the one in which the attack occurred. This car was later determined to belong to defendant. Approximately five days later, the victim identified defendant in a lineup. Finally, the victim testified her entire body was sore after the incident and that she initially fought defendant but stopped because he threatened to hurt her.

The second witness to testify was the victim’s sister, C.C., who testified she heard her sister walk into the house on the morning of August 11, 1990. C.C. testified her sister was making a noise but she could not tell at first whether the victim was laughing or crying. She testified the victim entered the bedroom and woke her up. The victim was hysterical, shaking, crying, and very hard to understand. C.C. asked what happened and the victim stated she was raped. C.C. got out of bed and asked her sister to tell her what happened. Over objection by defense counsel, C.C. related the following:

“She told me that her and a friend of hers, [D.F.], had been at The Silver Bullet and there was some guys there that had been talking to them, and I am not for sure for how long a period of time or anything, and after the bar closed they decided they were going to go out for breakfast. They were going to go to Steak-N-Shake, for whatever reason Steak-N-Shake was either closed or not serving breakfast at this time, and they were going to go to Taffies and then once they got to Taffies I think they just had coffee or something, which they weren’t serving breakfast anymore, and then [the victim] wanted to go home but she was not drove home, she was drove out in the country somewhere and she told me that a person driving the car had stopped, told her that he had to go to the bathroom, then got back in the car and told her that they were going to have sex, that she — he knew karate and if she didn’t do what he said he would break her arms, and then she told me that she had been raped. Then I got up out of bed, and I went and called 911.
* * *
*** She told me his name was Wayne and she thought it was McCracken ‘cause she had — he had given her this business card when they were at The Silver Bullet and then had — she couldn’t remember the exact name for sure but he had taken it back from her after he raped her. He — he had told her that he wanted it back, and she tried to act like she didn’t know what he was talking about.”

C.C. testified the victim’s shorts were not fastened properly, her hair was a mess and her makeup was running because she had been crying and also because it had been smudged. She testified her sister had red marks on one side of her neck that looked like a finger where somebody had grabbed her neck. Finally, C.C. testified she went with her sister to the hospital and it took her sister anywhere from 24 to 36 hours to sleep and calm down.

The victim’s friend, D.F., testified in a manner essentially consistent with the victim’s testimony. D.F. stated she and the victim were drinking beer that night but neither was drunk and both knew what they were doing. She testified that after the bar closed, D.F., the victim, and two other men discussed going to breakfast. D.F. decided not to go with them because she was house-sitting. D.F. testified the victim was not drunk when she left the bar and she felt the victim would be all right with the men.

Champaign County deputy sheriff Mark D. Goodwin testified he responded to a criminal sexual assault complaint on August 11, 1990. Deputy Goodwin went to the victim’s house and spoke with her and her sister. He described the victim as sitting at the kitchen table with her clothing in disarray, her shorts unbuttoned, and quite upset, crying, and very emotional. Deputy Goodwin testified the victim told him she was raped and then he offered her a ride to the hospital. Finally, Deputy Goodwin testified he collected evidence from the nurse at the hospital which was forwarded to the Illinois Bureau of Forensic Science for analysis.

Dr. Jens Yambert testified he examined the victim in the emergency room of the Carle Clinic on August 11, 1990. Dr. Yambert testified the victim was not very communicative, seemed to be scared, and did not respond verbally to questions. He examined the victim’s body and genital area and noticed some irritation and reddening near the opening of the vagina. Dr. Yambert testified he noticed white debris near the opening of the vagina and the anus which he believed to be recently deposited semen. He also noticed some other debris that appeared to be body hair. Dr. Yambert testified he performed a speculum exam on the victim but could not use large speculum because the victim was apprehensive, scared, and was experiencing tenderness in the vaginal area. Dr. Yambert did not notice any unusual welts or contusions on the victim’s body, but did note that the victim stated her attacker held her throat and pulled her arms and legs behind her. Dr. Yambert did acknowledge the victim later called the clinic complaining of pain in the left shoulder and wrist from this incident.

Dr. Yambert testified, based on a reasonable degree of medical certainty, that the cause of the reddening in the victim’s vagina was either intercourse or attempted intercourse. He also testified that this type of irritation or reddening would be consistent with forced sexual penetration.

On cross-examination, Dr. Yambert admitted the victim had no scrapes, contusions, or abrasions on her body. He also admitted there was no tearing in the vaginal area or in the anal area. Dr. Yambert testified he could not determine whether there had been actual penetration. He testified there were many possibilities as to what could cause irritation in the vaginal area but that, in his opinion, the degree of reddening of the victim’s vaginal area would be consistent with vigorous intercourse, forced intercourse, or attempted intercourse.

Sergeant Bob Doty testified that in the early morning hours of August 11, 1990, he took the victim to the Columbia Village mobile home trailer park to see if she could spot the vehicle in which the attack took place. Sergeant Doty told the victim that just because he was taking her through this particular mobile home park, this did not mean the car was definitely there. Sergeant Doty stated that, although he knew where the car was located, he did not immediately go there but drove around the block, had the victim’s sister wait in her car near the park office and then drove randomly throughout the trailer park. Eventually, Sergeant Doty drove by the residence where the vehicle was located and the victim stated that it was the vehicle in which the attack took place.

Sergeant Doty then took the victim back to the park office and returned to the residence where the vehicle was located. Sergeant Doty testified that he knocked on the door and shortly thereafter a man, identified by Doty in court as defendant, answered the door. Sergeant Doty identified himself to the defendant and stated he wished to speak to him but told defendant he was not under arrest. The defendant asked Sergeant Doty what he wanted to speak to him about and Sergeant Doty stated he wished to speak about an incident that happened the previous evening. Defendant stated the only thing that had happened the previous evening was that he had met a “ ‘din-gee’ girl” at the Silver Bullet in Urbana.

Defendant further revealed to Sergeant Doty that he had gone to the Silver Bullet after a softball game with some team members and had met a girl; she approached him. Defendant stated he left with this girl, drove to the Steak ’N Shake restaurant, then drove to Taffies to eat breakfast and then dropped the girl off near her home near Crystal Lake Park. Sergeant Doty asked defendant if it was possible he had taken a different route after leaving Taffies than what he told Sergeant Doty and defendant replied, “No.” Sergeant Doty testified he asked defendant whether he had sexual intercourse with this woman and defendant replied he had not.

Deputy Steven Zook of the Champaign County sheriff’s department testified that on August 11, 1990, he watched a vehicle parked outside a mobile home that had been previously identified by Sergeant Doty. At approximately 3 p.m., or shortly thereafter, Zook saw a man, identified in court as defendant, approach the vehicle. Zook then himself approached the vehicle, took custody of it and arrested defendant. Defendant was informed of the reason for his arrest and that his car was being impounded pursuant to a search warrant. Zook testified the defendant made the following three statements: (1) “She wanted it”; (2) “She was laying [sic] all over me”; and (3) “There were a lot of people that seen it.” Zook testified he did not ask defendant any questions at this time. On cross-examination, Deputy Zook admitted defendant also made these statements at the time of his arrest: “I didn’t force her. She went with me on her own.”

The final witness for the State was Phillip Sallee, a forensic serologist for the Illinois State Police at the Springfield crime lab. Sallee testified he received a quantity of evidence from the Champaign County sheriff’s department on September 14, 1990. Sallee examined this evidence and made the following conclusions: (1) the vaginal swabs taken by Dr. Yambert indicated the presence of semen; (2) the rectal swabs taken by Dr. Yambert indicated the presence of semen; (3) the defendant could not be excluded as a possible source of the semen found on the vaginal swabs; (4) the semen on the rectal swabs could have come from defendant; and (5) that due to the amount of semen present on the rectal swab, it was more than likely that there was penetration or contact with the rectum as opposed to drainage from the vagina. On cross-examination, Sallee testified there were other factors, such as the length of time between the assault and the collection of samples and whether the victim engaged in any type of hygiene activity, that would affect a reading of the vaginal and rectal swabs.

Defendant testified he lived at 2046 Constitution in Urbana, Illinois, was married, and had two children. Defendant testified that on August 10, 1990, he went to a softball game and then went to the Silver Bullet with some teammates. There he met the victim after she approached his table. Defendant testified he danced with the victim and his friend danced with her friend. When the bar closed at approximately 1 a.m., the victim, Tim, and defendant decided to go to Steak ’N Shake for breakfast. Defendant testified the victim said, “I think I will go home with you.” Defendant testified the victim rode in his car and sat in the middle of the front seat and that Tim followed them in his own car. They did not stay at Steak ’N Shake because breakfast was not being served and they decided to go to Taffies instead. They arrived at Taffies around 2 a.m. and he did not eat, but drank two cups of coffee. Defendant stated the victim sat next to him in the booth and that she was rubbing her leg up against him.

Defendant testified they left approximately at 2:30 or 2:45 a.m., and that his friend Tim gave him the four cans of beer left from the six pack purchased as they left the Silver Bullet. Defendant stated he began driving in a route through the country rather than through town to avoid the police. Defendant eventually stopped his car because he had to urinate. He testified he left the car keys in the ignition. Defendant stated he and the victim talked for a while and she eventually said she had to go to the bathroom. Defendant testified the victim got out of the car while he waited in the driver’s seat. The victim returned to the car, saying she did not have to go to the bathroom, and they talked a little bit more. Defendant stated he got out of the car because he had to urinate again. After he relieved himself, he got back in the car on the passenger side. Defendant testified the foreplay indicated to him the victim’s willingness to have sexual intercourse. Defendant stated the victim moved over to the middle of the car to let him in on the passenger side. He eventually took off the victim’s clothes, but she did not really help him with this because there was not much room in the car. Defendant testified the victim did not offer any resistance to him undressing her. Defendant testified that after the victim’s clothes were off, she lay down on her back and they had vaginal intercourse. Defendant testified they eventually changed positions because his arms and legs were getting sore due to the limited amount of space in the car. Defendant stated this new position was also becoming cramped and awkward so they returned to the original position. Defendant stated the victim never asked him to stop nor offered any resistance or attempted to get away from him.

Defendant testified the victim eventually told him to stop and, approximately one minute after that, he did. He testified he put his clothes on and the victim began getting dressed. Defendant stated at that time the victim was very quiet. He denied telling the victim he would break her arms and legs if she did not have sex, that his friends would hurt her, or that he knew karate. Defendant stated that he drove the victim home, and she was not crying but acted as if she felt guilty. Defendant stated he took the back way home to avoid confrontation with the police because of problems with his truck. Defendant stated he asked for the return of the business card he had given the victim because he never intended for her to keep it. Finally, defendant stated he told a different story to Sergeant Doty when first confronted about this incident because he had just awakened and explained things to his wife. He was not proud of the fact that he had slept with another woman while he was married. Defendant stated he never thought the victim did not want to have sex with him and never forced her to have sex.

On cross-examination, defendant testified the victim raised up and allowed him to pull off her shorts. Defendant testified he did not attempt to penetrate her anus when they changed positions but rather was only attempting to have vaginal sex from a different position. Defendant further testified he was not aware he was in her anus area.

The jury returned guilty verdicts on both counts. On January 25, 1991, the trial court denied defendant’s motion for judgment n.o.v. and his motion to declare section 5 — 5—3(c)(2)(H) of the Unified Code of Corrections (Corrections Code) unconstitutional. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(2)(H).) The trial court stated section 5 — 8—4(a) of the Corrections Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) required the imposition of consecutive sentences. The court found that, because of the particular facts and circumstances of the case, the prolonged and brutal nature of the assault and the defendant’s past conviction for battery, more than a minimum sentence was necessary. Accordingly, the court sentenced defendant to two 7-year terms of imprisonment to run consecutively. This appeal followed.

Defendant contends the evidence was insufficient to prove he forced the victim to have vaginal intercourse. Defendant further contends the evidence was insufficient to prove anal penetration occurred and, assuming anal penetration did occur, the evidence was insufficient to prove forced anal penetration. The State contends the evidence was sufficient to prove guilt beyond a reasonable doubt for both counts of the indictment.

We no longer apply a different standard of review in a case in which a sex offense is charged, i.e., that the victim’s testimony be clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. The proper standard is whether, 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. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732.) The resolution of factual disputes and the assessment of the credibility of witnesses are for the trier of fact. The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to defendant’s guilt remains. People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.

The jury had sufficient evidence to find defendant guilty beyond a reasonable doubt on both counts of criminal sexual assault. First, the victim explicitly testified she did not consent to either vaginal or anal intercourse. The victim testified defendant threatened to hurt her if she did not cooperate. Moreover, the victim, immediately upon returning home, told her sister she was raped. The medical evidence established irritation and reddening in the vaginal area, which Dr. Yambert testified would be consistent with forced intercourse. The medical evidence also established the victim experienced pain in her left arm and sought medication for that pain, which is consistent with her statement that defendant pinned her arm behind her. The medical evidence established the presence of semen near the anus and the rectal swabs from that area indicated the defendant could have been a source of the semen. Finally, the jury had an opportunity to listen to extensive cross-examination of the victim as well as the other witnesses for the State. The jury had the opportunity to listen to defendant’s version of what happened. We conclude the evidence was sufficient to support defendant’s conviction.

Defendant next contends the testimony of the victim’s sister regarding the victim’s statement describing the details of her alleged attack was erroneously allowed into evidence over his objection because it did not meet the requirements of the spontaneous declaration exception to the hearsay rule. The State responds the statement was properly admitted as a spontaneous declaration.

Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls within an exception. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.) To bring a statement within the spontaneous declaration exception, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (Roy, 201 Ill. App. 3d at 180, 558 N.E.2d at 1218.) In determining whether a statement is admissible as a spontaneous declaration, the trial court has considerable discretion. Its decision will not be reversed absent an abuse of that discretion. James, 200 Ill. App. 3d at 388-89, 558 N.E.2d at 738.

The first and third required factors are present in this case. Clearly, the victim’s statement to her sister that she was raped and the details of the attack relate to the circumstances of the occurrence. Moreover, the attack itself is a sufficiently startling event to produce a spontaneous declaration. (See Roy, 201 Ill. App. 3d at 181, 588 N.E.2d at 1218; James, 200 Ill. App. 3d at 389, 558 N.E.2d at 738.) The only remaining factor is whether there was time for the victim to fabricate her story.

Time alone does not control the admissibility of the evidence, but rather the critical factor is the lack of opportunity to fabricate. The trial court must look to the surrounding circumstances to determine whether there was an opportunity for reflection and invention. (James, 200 Ill. App. 3d at 389, 558 N.E.2d at 738.) Questioning of the declarant by a third party may destroy spontaneity, but a simple question such as “what happened” will not. Lawler, 142 Ill. 2d at 560, 568 N.E.2d at 900.

The evidence suggests the victim did not have sufficient time or opportunity to fabricate. Defendant testified they left Taffies at 2:45 a.m. The victim testified it took approximately 5 or 10 minutes for defendant to drive from where the attack occurred to her neighborhood and that she arrived home between 4:15 and 4:30 a.m. Deputy Goodwin testified he responded to a complaint by the victim’s sister at 4:25 a.m. The victim testified she ran the V-k blocks from where defendant dropped her off to her house and, upon entering the apartment, immediately awakened her sister and made the statements regarding the attack.

The maximum time the victim would have had to fabricate a story would be the total time of the car ride to her neighborhood plus the time it took her to run Viz blocks. The victim, her sister, and Deputy Goodwin all testified the victim was very upset and distraught at the situation. Moreover, the victim told her story to the first person she saw after the attack. The fact that she told her sister what had happened in response to a question by her sister does not destroy the spontaneity of the statement. Given the nature of the attack, the lack of time or opportunity to fabricate, and the fact that the victim immediately told the first person she encountered what had happened, the trial court did not abuse its discretion in allowing the testimony.

For his third argument, defendant contends the trial court erred in imposing consecutive sentences for his convictions because each conviction was based on a violation of the same statute. He urges this court to reconsider its rulings in People v. Lafferty (1990), 207 Ill. App. 3d 136, 565 N.E.2d 279, and People v. Ewald (1991), 210 Ill. App. 3d 7, 568 N.E.2d 451, wherein this court upheld mandatory consecutive sentences for sex offenses arising from the same course of conduct. Defendant suggests the legislature did not intend to require consecutive sentences for multiple violations of the same statute. Defendant’s position is without merit.

In Lafferty, the defendant was convicted of two counts of aggravated criminal sexual assault. Defendant there committed two acts of sexual penetration by placing his finger in the anus of his victim and his penis in the anus of the victim. Defendant was sentenced to consecutive terms of imprisonment and, on appeal, contended the trial court was not required to impose consecutive sentences.

This court initially noted that section 5 — 8—4(a) of the Corrections Code provides for consecutive sentences where defendants are convicted of multiple violations of section 12 — 13 or 12 — 14 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 13, 12 — 14). (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).) This section was amended in July 1988 to provide that when a defendant is convicted of a violation of section 12 — 13 or 12 — 14 of the Code, the court shall enter sentences to run consecutively. (Pub. Act 85 — 1030 §3, eff. July 1, 1988 (1988 Ill. Laws 200, 204).) This court concluded consecutive sentences were mandatory under this section. “The amendment to the statute *** constitutes a more recent expression of legislative intent and establishes a new rule.” Lafferty, 207 Ill. App. 3d at 137, 565 N.E.2d at 280.

Defendant suggests that because the definition of “[s]exual penetration” is so broad (“any contact, however slight”) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f)), if force could be proved, a defendant could be convicted of numerous violations of section 12 — 13 each time there was a withdrawal and reentry. He contends the legislature could not have intended such a result.

Defendant’s argument fails to present a persuasive basis for departing from the decision in Lafferty. The facts in Lafferty are analogous to those here. In each case, the defendant was convicted of two violations of the same section of the Code. The legislature, through the amendment to the sentencing statute, expressed its intent to have mandatory consecutive sentences for a violation of section 12 — 13 or 12 — 14. Defendant was convicted of two violations of section 12 — 13 and, therefore, consecutive sentences were required.

In the alternative, defendant asserts the imposition of consecutive sentences for multiple violations of the same section of the Code violates his double jeopardy rights. Defendant contends he was convicted of two acts of penetration during one rape. The State contends defendant was convicted of two separate acts of criminal sexual assault and, thus, consecutive sentences do not violate his double jeopardy rights.

The fifth amendment to the United States Constitution (U.S. Const., amend. V), made applicable to the States through the fourteenth amendment (U.S. Const., amend. XIV), provides: “No person *** shall *** be subject for the same offence to be twice put in jeopardy of life or limb ***.” This constitutional doctrine protects a defendant from three situations: it protects against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. (People v. Flanagan (1990), 201 Ill. App. 3d 1071, 559 N.E.2d 1105.) Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. (Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182.) If each offense requires proof of an additional fact not required to prove the other, then the two offenses are not the same for double jeopardy purposes. (People v. Totten (1987), 118 Ill. 2d 124, 138, 514 N.E.2d 959, 965.) The test is to focus on the statutory elements of the charged offenses, rather than on the actual evidence presented at trial. Flanagan, 201 Ill. App. 3d at 1077, 559 N.E.2d at 1109.

Where defendant commits more than one criminal act in a single episode or transaction, the State may prosecute for more than one offense unless the charges involve precisely the same physical act. (People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) “[Wjhere the physical acts are distinct, the defendant can be convicted of more than one offense ***.” People v. Foley (1990), 206 Ill. App. 3d 709, 717, 565 N.E.2d 39, 44-45.

Section 12 — 13 of the Code provides an accused commits criminal sexual assault if he commits an act of sexual penetration by the use of force or threat of force. Count I of the indictment alleged defendant inserted his penis into the vagina of the victim, and count II of the indictment alleged defendant inserted his penis into the anus of the victim. Clearly, these are two separate acts of sexual penetration. The victim testified defendant forced her to have vaginal intercourse and forced her to roll over and have anal intercourse. Both counts of the indictment allege the necessary elements for criminal sexual assault, and the State proved two separate acts in violation of section 12 — 13 of the Code. Defendant’s double jeopardy rights are not implicated.

The final issue raised by defendant is whether the trial court abused its discretion in sentencing defendant to two 7-year terms of imprisonment. Defendant contends the trial court abused its discretion in three ways: (1) by implying that it would have been more lenient had defendant abandoned his claim of innocence; (2) referring to the fact that he left “four victims” as a result of his actions; and (3) by imposing a sentence greater than the minimum. All three arguments raised by defendant are without merit.

The imposition of a sentence is a matter of judicial discretion and, absent an abuse of that discretion, the sentence imposed by the trial court will not be altered on review. A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

At the sentencing hearing, defendant made the following statement on his own behalf:

“I would like to say due to the seriousness of the charges, it’s forced me to look at myself, and I regret getting in the situation that I got in, which all I want to do is just get through this and return back to my family.”

Thereafter, when pronouncing the sentences, the trial court stated:

“I have heard some expression of remorse this morning, although frankly I believe he was somewhat ambivalent. When the Defendant says he was sorry, he’s sorry that he allowed himself to be in a position where this could happen, that sounds almost as if he is simply sorry that he got in the car with the young lady as opposed to being sorry for committing the offenses that a jury has concluded beyond a reasonable doubt that he committed.”

Defendant alleged the court, as evidenced by the above statement, sentenced him more severely because of its belief he was not sorry for his crime.

A more severe sentence may not be imposed because a defendant refused to abandon his claim of innocence. (People v. Byrd (1986), 139 Ill. App. 3d 859, 487 N.E.2d 1275.) In People v. Leckrone (1985), 134 Ill. App. 3d 978, 983, 481 N.E.2d 343, 347, this court stated the following:

“[I]t is no more acceptable for a court to punish a defendant’s lack of remorse than to punish his insistence on innocence. *** *** [Accordingly, we hold that a defendant’s lack of remorse *** can only be the basis of a reversal if it is manifestly clear from the record that the final determination of sentences reflects the consideration by the court of these factors.”

The supreme court, however, in People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, declined to follow Leckrone and stated a trial judge must consider all matters reflecting upon the defendant’s personality, propensities, purposes, tendencies, and every aspect of his life relevant to the sentencing proceeding. The court further stated that in some instances and under certain factual circumstances, a continued protestation of innocence and the lack of remorse may convey a strong message to the trial judge that the defendant is an unmitigated liar and at continued war with society. Such impressions garnered by the trial judge from the entire proceeding are proper factors to consider in imposing sentence. Ward, 113 Ill. 2d at 528, 499 N.E.2d at 426.

Such a situation is present here, albeit perhaps to a lesser degree. Defendant’s statement indicated he was not sorry for what he had done to the victim, but rather he was sorry for what he had done to himself by allowing himself to be in that position. The trial court was correct in taking into account the quality and extent of defendant's remorse given the facts and circumstances of the case.

Defendant next contends the trial court erred when it stated the following with respect to having sympathy for defendant’s family: “[defendant] has left not only one victim, he has left at least four.” Defendant asserts, without any authority, that it is error for the trial court to consider any other victim(s) other than the complainant herein.

In some instances, references to a victim’s family or defendant’s family may be improper and constitute impermissible error. The comment by the trial court here was merely a passing reference to defendant’s family. The court was well aware of the fact that defendant left a wife and two children. Nothing in the record suggests this factor had any bearing on the sentence imposed. In light of the other factors properly considered by the trial court in sentencing defendant, this remark by the trial court had no effect on the sentence imposed. See Ward, 113 Ill. 2d at 526-27, 499 N.E.2d at 425-26.

Finally, defendant contends the trial court abused its discretion by imposing sentences greater than the minimum. Defendant cites numerous other cases where a defendant was convicted of a more serious criminal sexual act and yet received a lesser sentence.

Where a sentence falls within the statutory range and the court has not erred in the factors considered, a reviewing court will not alter the sentence unless it constitutes an abuse of discretion by the trial court. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The statutory range of terms of imprisonment for criminal sexual assault, a Class 1 felony, is not less than 4 and not more than 15 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(4).) Obviously, seven-year terms of imprisonment fall within this range. The trial court also considered defendant’s presentence report, which established he had a prior burglary conviction as a juvenile, a battery conviction as an adult, and various traffic convictions. The court also considered the letters submitted by defendant’s family and friends but concluded that they did not fully describe him. The trial court noted defendant had a previous drug and alcohol problem that he had declined to fully address. Finally, the court noted the prolonged and brutal nature of the assault upon the victim and this factor, coupled with the aforementioned factors, led the trial court to conclude that a sentence greater than the minimum was appropriate. Viewing the record as a whole, there was no abuse of discretion by the trial court in the sentences imposed.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.