author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRENCE A. BROWN, Defendant-Appellant.
    Fourth District
    Nos. 4—88—0386, 4—88—0387 cons.
    Opinion filed February 23, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant Terrence A. Brown brings these consolidated appeals from an order of the circuit court of Champaign County which defendant characterizes as a “partial” denial of his post-conviction petition. In his post-conviction petition, defendant alleged ineffective assistance of counsel and challenged the guilty plea proceedings and sentences imposed in two cases consolidated before the trial court.

On March 6, 1986, defendant pleaded guilty to residential burglary and aggravated criminal sexual assault (docket No. 85—CF—1603) and to armed robbery (docket No. 85—CF—1695). (Ill. Rev. Stat. 1985, ch. 38, pars. 19—3, 12—14(a)(4), 18—2(a).) On March 26, 1986, the trial court imposed concurrent sentences of 15 years for residential burglary and 30 years for aggravated criminal sexual assault, said sentences to run consecutive to a sentence of 60 years for armed robbery. However, during the sentencing hearing the trial court commented that the total maximum sentence available to defendant was 150 years.

On October 17, 1987, a petition for post-conviction relief was filed alleging ineffective assistance of counsel and attacking the guilty plea proceedings and sentences imposed. On November 10, 1987, the trial court appointed counsel on post-conviction petition. A supplemental post-conviction petition was filed pro se on February 9, 1988, and an amended petition was filed by appointed counsel on February 25, 1988. The amended petition for post-conviction relief alleged defendant was denied effective assistance of counsel for the following reasons: (1) counsel failed to inform defendant about allegedly exculpating facts relating to the charge of aggravated criminal sexual assault; (2) with regard to the same charge counsel advised defendant he had virtually no chance of acquittal and should plead guilty to avoid a sentence totalling 120 years; (3) counsel failed to file a motion to withdraw guilty pleas and appeal the convictions even though defendant advised him to do so within 30 days of pleading guilty; (4) counsel never asked defendant if he was addicted to drugs which addiction may have played a role in his criminal behavior; (5) counsel did not attempt to have defendant evaluated regarding possible drug addiction prior to sentencing and never requested such an evaluation even though the presentence report referred to defendant freebasing cocaine; (6) counsel failed to object to the imposition of an extended term of 60 years for armed robbery even though defendant was not eligible for such a sentence; (7) counsel failed to show defendant the presentence report and review it with defendant; and (8) counsel failed to move to strike statements in the presentence report which described the prejudice of Randi and Steve Blunier toward black people after they were victimized in those offenses.

In his petition, defendant sought to vacate the convictions and to set jury trials. In the alternative, defendant requested the sentences for residential burglary and armed robbery be vacated and defendant be resentenced after the trial court considered an evaluation of defendant for drug addiction. Defendant also asked that the plea for aggravated criminal sexual assault be vacated and the cause set for jury trial or, in the alternative, defendant be resentenced after having an opportunity to present evidence defendant was not the person who actually assaulted the victim.

At the hearing on the post-conviction petition, the circuit court found that the trial attorney’s representation of defendant was deficient for failing to perfect an appeal by filing a motion to withdraw the guilty pleas. The circuit court went on to conclude the defendant was prejudiced by his attorney’s deficient performance in that the deficiency waived a potential claim against the imposition of an extended-term sentence on the armed robbery charge. However, the trial court also ruled the trial attorney’s representation of defendant was not deficient because of the failure to inform defendant of allegedly exculpatory facts, failure to have defendant evaluated for a possible drug problem, and failure to strike alleged racial remarks. The final paragraph of the court’s order directed defendant to file a motion to withdraw his guilty pleas within 30 days of the date of the finding. It would, therefore, appear the order allowed defendant only to file a motion to withdraw his guilty plea to the armed robbery charge (No. 85 — CF—1695). Without filing a motion to withdraw the guilty plea, defendant appealed.

On appeal, defendant contends the trial court erred by granting defendant’s request for post-conviction relief while erroneously finding defendant’s trial counsel did not render ineffective assistance of counsel by failing to file a motion to withdraw defendant’s guilty pleas, claiming (1) the sentencing court misconstrued the law and (2) defendant’s guilty pleas were not knowing and voluntary pleas because defendant was not made aware of allegedly exculpatory facts known to his trial counsel.

Taken with the case is a motion filed by the State to dismiss the appeals. Based on the recent decision in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the State argues the appeals should be dismissed since defendant failed to file a motion to withdraw the guilty pleas after the trial court found trial defense counsel’s representation of defendant to be deficient and directed defendant to file a motion to withdraw his guilty pleas. The defendant’s objections to the motion ask this court either to deny the motion to dismiss, or to allow the motion to dismiss with leave granted to defendant to file a motion to reconsider or a motion to vacate the sentence in the circuit court.

Wilk does not deal with a situation involving a post-conviction petition at the conclusion of which defendant is directed to file a motion to withdraw his guilty plea. Wilk is an attempt by the supreme court to eliminate unnecessary appeals. Wilk deals with two situations: (1) where defendant filed a notice of appeal without first filing a motion to withdraw the guilty plea; and (2) where defendant filed a notice of appeal without filing a motion to withdraw the guilty plea, but did file a motion to reconsider the sentence imposed, and proceeded to appeal the sentence only. In the first situation, the appeal must be dismissed, the defendant being required to seek post-conviction relief. In the second situation, the reviewing court is to consider the appeal on the sentence only.

As a result, Wilk is somewhat distinguishable from the case at bar. Here, the post-conviction proceedings were had. The trial court found sufficient grounds for granting the post-conviction petition in one case. Defendant is now to file a motion to withdraw his guilty plea in the armed robbery case.

The Illinois Supreme Court has already determined that the granting of a petition for post-conviction relief is a final order from which the State may appeal. (People v. Joyce (1953), 1 Ill. 2d 225, 115 N.E.2d 262.) Therefore, we find the defendant may appeal from such an order in these consolidated cases to determine whether the order improperly divested defendant of the right to raise issues in the motion to withdraw his guilty pleas. The State’s motion to dismiss is denied.

Except for the apparent fact the order only allows defendant to file a motion to withdraw a guilty plea in one case, the trial court’s order does not foreclose defendant from raising any ground for relief which may properly be raised in a motion to withdraw the guilty plea in that case. Since the only basis for allowing defendant to file a motion to withdraw his guilty plea to armed robbery was a finding of ineffective assistance of counsel in failing to preserve for appeal the impropriety of giving defendant an extended term, it would seem that it would be more appropriate to limit relief for defendant to a new sentencing hearing rather than to allow defendant to challenge the entire conviction by way of a motion to withdraw his guilty plea. Since this issue is not raised in a cross-appeal, the trial court’s grant to defendant of the opportunity to move to withdraw his guilty plea stands.

However, allowing defendant to file a motion to withdraw his guilty plea only as to the armed robbery case was error. Under People v. Phillips (1986), 150 Ill. App. 3d 531, 502 N.E.2d 80, appeal denied (1987), 114 Ill. 2d 554, 508 N.E.2d 734, cert. denied (1987), 482 U.S. 907, 96 L. Ed. 2d 378, 107 S. Ct. 2486, a trial court cannot consider enhanced penalties where there has been no prior conviction, such as where defendant is being simultaneously sentenced on two separate charges to which defendant pleaded guilty. Therefore, the sentencing court improperly stated the law when referring to a possible maximum of 150 years for these offenses. The only way defendant would be sentenced to 150 years is if enhanced penalties are applied to all these sentences. The fact defendant was sentenced to an extended term of 60 years for armed robbery is further evidence the trial court misinterpreted the law. As a result, the failure of defense attorney to file a motion to withdraw guilty pleas also prejudiced defendant in preventing defendant from having considered on appeal the issue of whether the sentencing court’s misunderstanding of the sentencing limits required a new sentencing hearing as to all the charges. (See People v. Marquis (1977), 54 Ill. App. 3d 209, 369 N.E.2d 372.) Defendant should be given a new sentencing hearing in No. 85—CF—1603 as well.

The remaining question defendant seeks to have answered on appeal is whether he should be allowed to file a motion to withdraw his guilty plea for aggravated criminal sexual assault because of the failure of trial counsel to advise defendant of allegedly exculpatory facts. The post-conviction hearing in this case focused on the conduct of the defense attorney and whether said conduct was ineffective assistance of counsel, thereby depriving defendant of his right to counsel as guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 8 of the Illinois Constitution of 1970. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8.) In order to establish ineffective assistance of counsel in guilty plea cases, defendant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability defendant would not have pleaded guilty and would have insisted on trial except for counsel’s unprofessional errors. (Hill v. Lockhart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366.) We agree with the trial court that defendant has not met this burden.

Defendant’s trial attorney testified at the post-conviction hearing it was office policy not to tender discovery material to clients, and he followed office policy in this case. Defendant testified he did not see any discovery material prior to his plea. Later he learned the discovery material included a statement from the complaining witness that she could not identify the perpetrator because his facial features were covered, but he stood about 6 feet tall. Defendant is 5 feet 7 inches in height. Both defendant and defendant’s trial counsel testified the defendant had originally named another individual as the perpetrator of the sexual assault. The attorney admitted, however, that defendant later accepted sole responsibility for the offense.

Defendant testified that trial counsel had informed defendant the prosecutor had a very strong and overwhelming case, and that chances of acquittal were minimal. Numerous fingerprints of defendant were found in the victim’s home, including the point of entry, and defendant and the victim were not acquainted previously. Defendant’s defense was that he accompanied another person to the house, and after burglarizing the premises, the other man returned to the house for about 10 minutes while defendant waited outside. In order to establish this improbable defense, defendant would have to testify opening defendant to impeachment for prior convictions and the possibility he may have been found guilty on an accountability theory anyway. Furthermore, the tests of seminal material did not exclude defendant as the perpetrator. Trial counsel advised defendant to plead guilty in the hope of getting a lesser sentence.

Based on the evidence, we find defendant has not established either that trial counsel’s representation was incompetent or that there is a reasonable probability defendant would have insisted on going to trial had he been made aware of the victim’s statement about the height of the perpetrator and her inability to identify the perpetrator. The trial court properly refused to allow defendant to file a motion to withdraw his guilty plea as to aggravated criminal sexual assault.

For the foregoing reasons, the sentences in both cases must be vacated and the causes remanded for a new sentencing hearing. Accordingly, the order of the circuit court of Champaign County is affirmed in part, reversed in part and remanded.

Affirmed in part; reversed in part and remanded.

McCULLOUGH, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD E. KNOBLETT, Defendant-Appellant.
    Fourth District
    No. 4—88—0901
    Opinion filed February 23, 1989.
    Andrew J. Wapner, of Andrew J. Wapner, PC., of Robinson, for appellant.

      David W. Lewis, State’s Attorney, of Marshall (Kenneth R Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant’s driver’s license was suspended pursuant to section 11—501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1). Defendant filed a petition to rescind his summary suspension pursuant to section 2 — 118.1 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1). The circuit court of Clark County dismissed the petition and confirmed defendant’s statutory summary suspension. Defendant appeals. We affirm.

This appeal is brought on an accelerated basis pursuant to Supreme Court Rule 311 (107 Ill. 2d R. 311). In accordance with Rule 311, the parties have filed an agreed statement of facts in lieu of a record. The crux of this appeal is whether defendant made a prima facie case for rescinding his summary suspension. The State offered no evidence for its case.

Defendant challenged the suspension by arguing the arresting police officer did not have reasonable grounds to believe he was driving under the influence of alcohol. (See Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1(b)(2).) Defendant testified at the hearing, but he submitted no evidence in addition to his testimony. Therefore, the only evidence for the court’s consideration was defendant’s testimony.

Defendant testified that he was stopped by a police officer from Casey, Hlinois, on November 16, 1988, at approximately 2:30 a.m. Defendant got out of his car and met the officer between their vehicles. The officer told him he had failed to dim his headlights to oncoming traffic, which included the police vehicle. Defendant stated he walked back to his car to show the officer the headlights were on low beam. The officer ignored the matter of the headlights and, within a short period of time, defendant was arrested for driving under the influence of alcohol. Following argument, the trial court denied the petition to rescind.

Recently, our supreme court explained the allocation of the burden of proof in a rescission hearing. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) According to Orth, a defendant has the burden of establishing a prima facie case for rescission of a summary suspension. (Orth, 124 Ill. 2d at 337-38, 530 N.E.2d at 215.) Prima facie evidence is that evidence sufficient to establish a fact and which will remain sufficient if unrebutted. (People v. Sanders (1987), 155 Ill. App. 3d 759, 764, 508 N.E.2d 497, 500.) In. Orth, the defendant chailenged the accuracy of a breathalyzer machine, and the court’s comments are directed specifically at that issue. However, the court made the following pertinent comments with respect to what constitutes a prima facie case:

“It only remains to consider what evidence presented by the motorist will constitute a prima facie case for rescission. Where the motorist argues for rescission on the basis that the test results were unreliable, such evidence may consist of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol. We emphasize that this is not an invitation to commit perjury. Only if the trial judge finds such testimony credible will the burden shift to the State to lay a proper foundation for the admission of the test results. The trial judge’s finding as to the prima facie case will not be overturned upon appeal unless against the manifest weight of the evidence.” Orth, 124 Ill. 2d at 340-41, 530 N.E.2d at 217.

In the instant case, defendant challenged his summary suspension by arguing the arresting officer did not have reasonable grounds to suspect defendant of driving under the influence of alcohol. Applying the above-stated principle from Orth, defendant must present some evidence to negate the allegation that he exhibited symptoms of alcohol use. Defendant presented no evidence on the issue of alcohol. According to the statement of facts, he did not so much as say, “I was not under the influence of alcohol.” Defendant’s testimony simply explained why he was stopped, and that he was eventually arrested for driving under the influence of alcohol. On this record, we must find that defendant failed to establish a prima facie case for rescission of his summary suspension.

For the reasons stated above, we affirm the order of the circuit court of Clark County.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD A. PETRO, Defendant-Appellant.
    Fourth District
    No. 4—88—0351
    Opinion filed March 2, 1989.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Larry R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of deceptive practices over $150. (Ill. Rev. Stat. 1985, ch. 38, par. 17—1(B)(d).) Subsequently, the trial court sentenced him to 12 months’ probation. Defendant argues he was not proved guilty beyond a reasonable doubt and the statute violates equal protection and due process.

We affirm.

Yvonne Singleton, a cashier at the Farm and Fleet Store in Decatur, testified that on November 4, 1987, she was operating a cash register at the store. She took money in payment for merchandise. She identified an exhibit as being a check for a payment from defendant. When she received the check, she gave it to her supervisor, who approved it. Singleton then entered the amount in the cash register and put the check in the cash register. She did not recall the circumstances of the particular transaction but remembered taking the check.

Diane Scales, a cashier and supervisor at the store, stated she approved the check on November 4, 1987. The check was made out for the amount of $157.55 and payable to Farm and Fleet.

Pete Grosso, a vice-president at First National Bank of Decatur, testified that defendant’s account was closed prior to November 1987.

Rick Jones, a detective with the City of Decatur police department, testified that he interviewed defendant. Defendant stated he wrote the check to purchase a chain saw. He knew the account was closed at the time he purchased the saw.

Defendant admitted at trial that he wrote the check but stated he intended to put money in his account to cover the amount. After Jones contacted him, defendant contacted Farm and Fleet and paid the check amount plus the service charge. Defendant further stated he first learned the check had not been honored when Jones contacted him.

Initially, defendant argues the State failed to prove an essential element of the corpus delicti of the offense by evidence independent of defendant’s statements to Jones. Defendant contends no independent evidence shows he obtained something of value in exchange for the check. Proof of a criminal offense involves proof that a crime was committed and that defendant committed the offense charged. (People v. Lambert (1984), 104 Ill. 2d 375, 472 N.E.2d 427.) The corpus delicti of an offense may not be proved solely by an accused’s confession. There must be either some independent evidence or corroborating evidence outside of the confession which tends to establish a crime occurred. Lambert, 104 Ill. 2d 375, 472 N.E.2d 427.

However, the corpus delicti is not required to be proved beyond a reasonable doubt exclusively by evidence independent of the confession. If the independent evidence tends to prove an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered with the confession to establish the corpus delicti. People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861; People v. Call (1988), 176 Ill. App. 3d 571, 575-76, 531 N.E.2d 451, 454.

In a deceptive practice prosecution, the State must prove: (1) defendant made, drew, issued, or delivered a check or draft for payment; (2) defendant obtained money, property, or something of value for the check; (3) defendant knew his account was insufficient at the time he issued the check; and (4) defendant acted with the intent to defraud. (People v. Bormet (1986), 142 Ill. App. 3d 422, 491 N.E.2d 1281.) Singleton was acting as a cashier when she received defendant’s check. She stated she entered the amount of the check in the register as paid and deposited the check in her cash register drawer. As a cashier, she accepted payment for merchandise. This evidence along with the testimony of Scales and Grosso corroborates defendant’s statement he received something of value for the check and a crime was committed.

Defendant next argues that section 17—1(B)(d) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 17— 1(B)(d)) violates equal protection and due process guarantees. Defendant contends no rational distinction exists between deceptive practice by issuing a check (Ill. Rev. Stat. 1987, ch. 38, par. 17—(B)(d)) and theft by deception (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(b)). Theft by deception is a misdemeanor if the value of the properly taken is less than or equal to $300. (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(e)(1).) Deceptive practice is a Class 4 felony when the value of the property exceeds $150. (Ill. Rev. Stat. 1987, ch. 38, par. 17 — 1(B)(e).) Defendant argues the disparity in punishment violates equal protection concerns.

The legislature has wide discretion in classifying offenses and providing penalties for them. (People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) This discretion is not, however, unlimited. The equal protection clause requires persons who are similarly situated be treated equally. It does not deny the State the power to treat different classes of persons differently. Absent a fundamental right or suspect classification, the legislature may treat similarly situated persons differently if rational reasons exist for doing so. (People v. Watson (1987), 118 Ill. 2d 62, 514 N.E.2d 167; People v. Brooks (1989), 179 Ill. App. 3d 767.) Those contesting the statute’s validity have the burden of showing its invalidity. (People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.) An equal protection challenge to a classification will fail if a rational distinction between the classifications is possible. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. James (1986), 148 Ill. App. 3d 536, 499 N.E.2d 1036.) If different elements are required to prove the offenses, the equal protection argument must fail. James, 148 Ill. App. 3d 536, 499 N.E.2d 1036.

The theft statute is designed to protect property owners. Prosecutors must prove ownership of the goods in question. The theft need not be completed by use of a check or similar instrument. (James, 148 Ill. App. 3d 536, 499 N.E.2d 1036; Ill. Rev. Stat. 1987, ch. 38, par. 16—1.) In contrast, the deceptive practice statute is not tied to ownership of the property but addresses the use of bad checks in a transactional setting. The legislature could properly distinguish between those who use deception to take property from its owner and those who use checks and other such instruments drawn on insufficient funds in transactional settings.

Defendant next argues the disparity in punishment between deceptive practice and theft by deception violates due process. The inquiry under the due process clause is whether the legislature has reasonably designed the statute to remedy evils which threaten the public health, safety, and welfare. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) The legislature could reasonably conclude there was a greater economic detriment to the State and greater opportunity for deceptive practice than theft by deception. Therefore, the legislature did not act unreasonably in punishing deceptive practices exceeding $150 more severely than theft by deception of property valued over $150. See generally James, 148 Ill. App. 3d 536, 499 N.E.2d 1036.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    CHARLES KOLSTAD et al., Plaintiffs-Appellees, v. BRUCE RANKIN, Defendant-Appellant.
    Fourth District
    No. 4—88—0799
    Opinion filed March 2, 1989.

      Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellant.
    L. Keith Hays, of Monticello, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an interlocutory appeal by defendant Bruce Rankin from the order of the circuit court of Piatt County granting a preliminary injunction against defendant and in favor of plaintiffs Charles Kolstad, Mary Lucille Hays, and Mary Heath Hays. Plaintiffs own property adjacent to that owned by defendant. Defendant has a firing range located on his property. Plaintiffs filed a verified complaint for injunctive relief on October 5, 1988. On the same day, the trial court issued a temporary restraining order, which would expire on October 15,1988.

On October 12, 1988, a hearing was conducted. Following that hearing, the trial court issued the preliminary injunction ordering defendant “to refrain from discharging or permitting others to discharge any firearm at or within premises owned, controlled, or occupied by him in Section 34, Township 19 North, Range 6 East of the Third Principal Meridian, situated in Sangamon Township, Piatt County, Illinois, until further order of the court.” This order was entered on October 21, 1988, and defendant filed the notice of interlocutory appeal on October 31,1988.

Defendant occupies real estate in rural Piatt County, zoned for agricultural use. Defendant has lived there consistently since 1959. Defendant, with a partner who also lives on this property, operates a business from his house known as Williams Trigger Specialties. In this business, defendant, a federally registered gunsmith, works on firearm firing mechanisms.

Also located on the property is a firing range, which has been there since 1959. The range originally consisted of a hill or berm used as a backstop for firing at targets. The berm was originally 12 feet high and 20 feet wide, but was extended up to 100 yards wide in 1974. The height of the berm was increased to 30 feet in 1987. Also in 1987, defendant built a rectangular berm to allow 360-degree firing.

Defendant allows his friends to use the firing range, in addition to using it himself. He does not permit strangers to use it. In the last several years, he has also allowed various law enforcement agencies to use the range for training, practice, and qualification, including the Champaign police department, the Urbana police department, and the Ludlow police department. In 1987, the Champaign Police Department Strategic Weapons and Tactics (SWAT) team was permitted to use the range. This SWAT team, consisting of 12 people, has used the range 10 or 15 times in the past year. The most recent use by the SWAT team was on October 4,1988.

Defendant has never charged a fee for the use of his range. He has, however, considered putting his range to commercial use at some time in the future.

Defendant is almost always present when the range is in use by private individuals other than law enforcement personnel. In all the years that the range has been used, there has never been an injury or near-injury or complaint to defendant about the range or its use.

Kolstad purchased the property immediately west of defendant’s parcel on August 1, 1988, having signed the contract to purchase in May before he knew about the firing range. Plaintiffs Mary Heath Hays and Mary Lucille Hays reside on other property west of defendant’s property. Mary H. Hays is 76 years old, was bom in the immediate area, and has lived in her current residence since 1973. Mary Lucille Hays has lived in another house on the same parcel for two years, though she has utilized the family property throughout her life.

That portion of Kolstad’s property nearest defendant’s firing range is mowed pasture with scattered trees. His house is on the other side of his property. He has two children, ages six and eight, who play with the Hays children in the Hays’ timber. Before he took possession, he learned of the firing range and met defendant. Defendant showed him the range, gave him a demonstration of noise levels, and discussed his future plans for the range.

On October 4, 1988, Kolstad was in his house and heard short bursts of gunfire. He looked toward the Rankin property and observed thereon a half dozen or so individuals and three to five cars. He described the noise as “not faint *** a clear sound *** a clear annoyance.” He had not previously heard automatic weapons, but heard single fire. He acknowledged that the shooting range was 75 to 100 yards from the boundary of his property, and that his house was 30 degrees off the firing line such that a bullet would probably not strike his house in the absence of the berm. Kolstad has never observed a bullet striking his house or found a spent bullet. When asked to identify the danger from the range, he referred to the use of live ammunition being his major concern as well as a decline in property values resulting from noise and anticipated commercial activity. He has warned his children about going onto defendant’s property.

The Hays property includes timberiand consisting of oak, walnut, and some hickory trees. Although metal objects imbedded in the trees would depress their value, Mary Heath Hays has never had a complaint of a bullet embedded in a trunk of a tree and admits that a bullet through the crown of a tree would do little or no damage. She also admitted that it was almost impossible for a bullet to hit her house from the range. Although she is hard of hearing, she has heard gunfire on or around her property when she was outside or had a window open. If the windows are closed and the air-conditioning on, she does not hear anything outside. She has heard gunfire as early as 1973 when she moved back to the farm, but she first learned of defendant’s firing range in 1986.

Mike Hogge is Mary L. Hays’ husband. He and his family have lived on the Hays property for two years. They have two sons, ages seven and three. He testified that his children “play all over the farm.” He has been nervous about gunfire for the past year and has heard it “fairly regularly.” On October 4, he heard machine gun fire which was “fairly loud.” It disturbed and startled him, although it did not startle his three-year-old son. When asked on cross-examination how loud it was, he said it was “as loud as a car honking its horn maybe a block away.”

Mary L. Hays testified that as a child she played and camped in the timber on the Hays farm. However, since returning to the farm two years ago, she only goes out once in a while and has not noticed a difference in the animal population. She feels it's important for her children to learn about wooded areas as she did as a child, and has instructed her oldest son as to the boundary line between defendant’s property and the Hays farm. During the summer prior to the hearing, this witness could no longer find a trace of the fence between the properties and further observed that a road had been bulldozed allowing for direct access to the woods from the firing range.

Velva Wickstrom is the zoning administrator for Piatt County. She identified the Piatt County Revised Zoning Ordinance as revised in May 1983, as plaintiff’s exhibit No. 1, and she indicated that defendant’s property is zoned A-l, agricultural as zoned, the permissive uses for this property are “any agricultural activity, single family farm dwelling, park or forest preserve, public school, elementary and/or high, roadside stand for the display or sale of agricultural products raised on the premises and home occupation not employed, [sic] not employing any person outside the immediate family.” Within the ordinance, “home occupation” is defined as “any occupation or profession carried on by a member of the immediate family, residing on the premises in connection with which there is used no sign other than a name plate, no more than four square feet in area, or no display that will indicate from the exterior that the building is being utilized in whole or part for any purpose other than that of a dwelling; no more than one person outside the immediate family is employed on the premises; no mechanical equipment is used except such as is customary for purely domestic household purposes, and which is not offensive to adjacent property users, and does not interfere with the reasonable use of adjacent properties.” There is no reference to a shooting range in the ordinance, although there is an ordinance pertaining to outdoor recreational facilities such as stables, lakes, swimming pools, tennis courts, and golf courses in sites of less than five acres.

She became aware of the firing range in 1988 and spoke to defendant about his use of the range in May 1988. She and the State’s Attorney told defendant that if he charged money for the use of the range, the administrator would require a conditional use permit. The State’s Attorney felt that if he did not charge for use of his firing range, then there was no requirement that he apply for a permit. Plaintiff’s objection to Wickstrom testifying about this legal conclusion was sustained.

Officer Ronald Bryant of the Champaign police department testified he holds a “Police Training Institute Range Master Certification” and is the leader of the Champaign police department’s SWAT team. Bryant learned of Rankin’s range from a newspaper article and has had his team at the range 10 or 15 times in the past year. When the team practices at the range, they use a full range of weapons, though handguns are used the majority of the time. In early October 1988, such use included fully automatic weapons.

Bryant testified that the police department had difficulty finding a good firing range in the area. He testified that Rankin’s range is the safest one in the area because the berms are higher and bigger than other ranges with which he is familiar, such as the Police Training Institute in Champaign (20 feet high), the Illinois State Police range in Pesotum (14 feet high), and the National Guard range at Oakwood. He stated there is no way the Hays house could be hit by firing from the range unless the bullet went straight up in the air, spent all its energy and fell on the house. A spent bullet could, however, put an eye out if someone were looking up or could cause a knot on a person’s head. If someone were firing a high-powered rifle and shot over the top of the berm, the bullet could travel over a mile before falling to earth. He acknowledged that police make mistakes and guns misfire, and that he has been “uncomfortable” when automatic weapons were fired around his children. He pointed out that the recent changes to defendant’s firing range have made it safer. Finally, he stated that defendant has refused to accept payment of money or a fee for the use of the range.

Gary Marsh is chief of police of the Ludlow police department and has used the range with his officers 12 to 20 times in the past two years. He has never paid any money to defendant for the use of the range. His force has used all types of weapons on the range. Marsh is also a “Certified Firearms Instructor,” and he described the defendant’s range as safer to use than the range at the Illinois State Police location in Pesotum. He noted that the berm at Rankin’s range is one-third higher than most, making it safer. When asked on cross-examination to compare the safety to other ranges, he pointed out that Rantoul’s outdoor range is in the waste treatment facility and there is a farm adjacent to it. Regarding the Illinois State Police range in Peso-tum, there are open fields beyond the berm and persons using the range shoot away from Interstate 57. Only handguns may be used there. The firing range for the City of Paxton is in farm field and the range for the City of Mattoon is in a wooded area.

David Smith has known defendant for 29 years. He has shot on defendant’s land as far back as 1959. He has shot pistols, revolvers, shotguns, and other weapons. He last shot a 22 caliber rifle on the property in early 1988. He noted that the berms at the range are very high and that defendant is very safety-conscious in regard to the use of the range.

The first issue to consider on appeal is whether the trial court improperly granted the preliminary injunction based on the prayer for relief in the complaint rather than requiring plaintiffs to file a motion for preliminary injunction. There was a request for a preliminary injunction in the prayer for relief of plaintiffs’ verified complaint, and over defendant’s objection, the trial court considered this matter on the basis of the prayer for relief without the plaintiffs having filed a written motion. Defendant cites no mandatory authority for the proposition that a motion was required to be filed. Nichols on Illinois civil practice states:

“The application for temporary restraining order or preliminary injunction may be included in the original complaint, in which case the complaint must be verified, or it may be requested by motion filed at the same time or later and supported by proper affidavits. Even though requested in the complaint, a motion is necessary in order to bring it to the attention of the court and in order to settle the question of notice and bond.” 3 C. Nichols, Hlinois Civil Practice §2276, at 23 (rev. vol. 1987).

Defendant, in arguing that plaintiffs should have filed a motion for preliminary injunction, is confusing the form of notice with the need for notice. Certainly defendant must be given notice of the hearing on the preliminary injunction, but courts have suggested that where written notice is not practical, even a telephone call or other oral notice might suffice. (See Board of Education of Community Unit School District No. 101 v. Parlor (1981), 85 Ill. 2d 397, 424 N.E.2d 1152; Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App. 2d 39, 165 N.E.2d 531; Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 98 N.E.2d 858.) Unquestionably, formal notice is preferred to informal notice. But in this case, as to notice, there is nothing about which defendant should be complaining.

Plaintiffs filed a verified complaint requesting, among other things, a preliminary injunction. At the same time the trial court issued the temporary restraining order, the trial court set the date for the hearing on the preliminary injunction for one week later. Defendant certainly had notice of the hearing as well as notice of the facts which allegedly formed the basis for the request for a preliminary injunction.

Since defendant raises no challenge to notice or bond, to require the trial court to proceed only on a written motion would be of dubious value. After all, defendant suggests no reason the trial court could not consider the matter on the court’s own motion as long as notice is provided to all the parties. Clearly, the trial court properly proceeded in this case.

The second issue to consider is whether the trial court erred in allowing lay witnesses to give opinion testimony concerning noise levels. The trial court, over defendant’s objection, allowed the witnesses to testify to what they heard and their experiences, that is whether the noise disturbed them. They did not testify as experts in any form regarding noise levels.

A lay witness is not prohibited from testifying as to an opinion. It is often virtually impossible to distinguish between fact and opinion or to communicate the facts upon which the opinion is based. A lay witness may testify to an opinion which is rationally based on that witness’ perception such that the opinion would be normally arrived at from the facts observed. Nevertheless, the testimony is only to be introduced if it helps the trier of fact to understand the testimony or determine the facts. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §701.1, at 442-45 (4th ed. 1984).) In this case, the trial court properly allowed the witnesses to summarize their sensory impressions.

The next issue to consider is whether the granting of the preliminary injunction was an abuse of discretion on the part of the trial court because the evidence presented at the hearing fails to establish plaintiffs’ reasonable likelihood of prevailing on the merits or irreparable harm for which there is no adequate remedy at law. The Illinois Supreme Court has recently recited the standards for determining the propriety of issuing a preliminary injunction in In re Adoption of Scraggs (1988), 125 Ill. 2d 382, 388:

“The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of the cause. (Interstate Material Corp. v. City of Chicago (1986), 150 Ill. App. 3d 944, 951; Bismarck Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 175.) It is an extraordinary remedy which is applicable only to situations where an extreme emergency exists and serious harm would result if it is not issued. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386.) The plaintiff must establish four factors before an injunction will be granted: (1) that he possesses a clearly ascertained right in need of protection; (2) that he will suffer irreparable harm without the injunction; (3) that there is no adequate remedy at law for his injury; and (4) that he is likely to be successful on the merits of his action. 108 Ill. 2d at 387.”

This court has also recently considered preliminary injunctions and stated in Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997,1003, 516 N.E.2d 1313,1317:

“In addition to consideration of the above criteria, the trial court must conclude that the benefits of granting the injunction outweigh the possible injury which defendant might suffer as a result thereof. (The Packaging House, Inc. v. Hoffman (1983), 114 Ill. App. 3d 284, 448 N.E.2d 947; Booth v. Greber (1977), 48 Ill. App. 3d 213, 363 N.E.2d 6.) Finally, as the decision to grant or deny preliminary injunctive relief rests within the sound discretion of the trial court, and because its findings may not be disturbed absent a showing of an abuse thereof (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 392 N.E.2d 1148; Wessel Co. v. Busa (1975), 28 Ill. App. 3d 686, 329 N.E.2d 414), the role of a reviewing court is limited to a determination of whether those findings are contrary to the manifest weight of the evidence. Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 424 N.E.2d 719.”

In its order issuing the preliminary injunction, the trial court included the following findings of fact:

“6. Prior to 1986, the Defendant used a portion of the property occupied by him for casual target shooting.
7. That subsequent to 1986 and thereafter, the Defendant commenced operation of and continues construction of a commercial firing range facility and has permitted outside groups to use that facility for the firing of high powered rifles and fully automatic weapons thereby changing the character of the prior use of the land creating and causing increased disturbances from noise and traffic and risk of injury to the Plaintiffs and their children while using their own property.
* * *
10. That the noise generated by the operation of the firing range disturbs and infringes upon the use of Plaintiffs’ property as their residences, and its operation constitutes a hazard to the children of the Plaintiffs, interferes with the use of the Plaintiffs’ premises for recreation, interferes with the Plaintiffs’ use of the premises to produce marketable timber.
11. That the operation of the said firing range constitutes an unreasonable interference with the Plaintiffs’ rights to quiet enjoyment of their property and interferes with their lawful use of their property and constitutes a nuisance at law.
12. That, unless the Court issues its Preliminary Injunction, the operation of the said firing range will cause the immediate and irreparable deprivation of the Plaintiffs’ rights to quiet enjoyment of their property and continue to cause that deprivation for which there is and can be no adequate remedy at law.
13. That, the Defendant has not shown any economic or other damage which might or could be caused to him by the issuance of a Temporary Injunction [sic].”

In support of his argument that the plaintiffs failed to show a reasonable likelihood of success on the merits, defendant raises three contentions: (1) the evidence does not support a finding that the use of the firing range was a danger to plaintiffs or their children; (2) the evidence of noise nuisance is insufficient; and (3) the trial court’s finding that the county zoning ordinance was violated does not support the issuance of the preliminary injunction. Although an injunction will not issue to restrain an ordinance violation in the absence of clear and distinct evidence the plaintiffs are sustaining or will sustain a substantial injury (Hartlett v. Dahm (1981), 94 Ill. App. 3d 1, 418 N.E .2d 44), the trial court in the instant case specifically found an infringement on plaintiffs’ use of their property because of noise as well as danger to plaintiffs’ children. In addition, there was sufficient evidence in this case to support the granting of the preliminary injunction even without the ordinance violation being considered.

Where injury is threatened by the lawful use of a firing range, the courts of this State will enjoin the use of the firing range. (Joos v. Illinois National Guard (1912), 257 Ill. 138, 100 N.E. 505.) Defendant relies heavily on Smith v. Western Wayne County Conservation Association (1968), 380 Mich. 526, 158 N.W.2d 463. However, Smith involves the affirmance of an order denying an injunction against the use of a firing range. Had the trial court in this case denied the preliminary injunction, then perhaps the evidence could be said to support such a ruling. But here the trial court granted the injunction, and there is sufficient evidence in the record to support the ruling both as to possible injury and as to noise.

High-powered rifles are used which can project a shell for over a mile, if the berm does not impede the progress of the shell. Persons utilizing the range can now shoot 360 degrees rather than only one direction. And even a spent shell could cause some injury.

Any unreasonable, unwarranted, or unlawful use of one’s property such that another’s use and enjoyment of his property is invaded by a material annoyance, inconvenience, discomfort, or hurt is a nuisance. (The Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, 395 N.E .2d 1193.) In determining whether a particular annoyance constitutes a nuisance, the court is to consider the effect of the annoyance on an ordinary, reasonable person, rather than the effect on a person who is abnormally sensitive. (Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Comm’n (1966), 34 Ill. 2d 544, 216 N.E.2d 788.) Defendant in his brief admits that courts of this State have recognized that noise can cause a nuisance, but defendant suggests those cases involve frequent or constant noise occurring at night in urban areas. That does not negate the possibility of an actionable nuisance based on noise occurring with less frequency in a rural area. Regardless of frequency or location, automatic weapon fire on a neighbor’s land would cause discomfort or annoyance to an ordinarily reasonable person.

In arguing that plaintiff has failed to show an irreparable harm for which there exists no adequate remedy at law, defendant does not relate this argument to either noise or possible injury. While it is true the Hayses can be compensated for any damage to the timber, defendant does not demonstrate how plaintiffs can be compensated for disturbances from noise, or the need to avoid certain areas of plaintiffs’ own property to avoid the possibility of being injured. In this case, there is no legal or equitable remedy which can make plaintiffs whole for the inconvenience suffered by plaintiffs during the pendency of the cause on the merits if the preliminary injunction does not issue. See Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 508 N.E.2d 1053.

The fourth issue raised by defendant is whether the granting of the preliminary injunction was an abuse of discretion because the trial court failed to balance the benefits of granting the relief with any possible injury to defendant or the public. Defendant has failed to show any private or public interests which, on balance, require protection. Defendant steadfastly contends he is not operating the firing range as a commercial venture. If not, what harm could defendant possibly incur if he and his friends do not use the range pending the outcome of the litigation, particularly in light of the fact that the use up to now has been infrequent? Defendant does not contend the use of the range is required for his business.

The only arguable public benefit is the use by local law enforcement agencies, but they have other firing ranges to utilize. If the municipalities for which they work feel there is a need to train these people in “high-powered and strategic weapons,” then it is the obligation of the municipalities to provide a safe location for such training which does not disturb others’ use and enjoyment of their property. However, since the municipalities have not provided such facilities, the court could logically conclude such training is not a significant factor in maintaining the competence and readiness of law enforcement personnel. The facts were before the court and the court considered any possible inconvenience.

Defendant also argues the granting of the preliminary injunction was an abuse of discretion because the order altered rather than maintained the status quo. In general terms, the purpose of a preliminary injunction is to maintain the status quo, defined as the last, peaceable, uncontested status preceding the litigation, while the cause pends a determination on the merits. (Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 516 N.E.2d 1313.) The preliminary injunction is designed to prevent a threatened wrong or the further perpetration of an injurious act. Toushin v. City of Chicago (1974), 23 Ill. App. 3d 797, 320 N.E.2d 202.

Defendant contends the “status quo” is the set of circumstances which existed immediately prior to plaintiffs’ complaint. Defendant ignores the fact that the failure to issue a preliminary injunction could result in injury which had not previously occurred. Therefore, the preliminary injunction here maintains the status quo by preventing a threatened wrong. The preliminary injunction also prevents the further perpetration of those acts causing the noise which forms the basis of the nuisance. Therefore the trial court has not committed an abuse of discretion warranting the reversal of the order.

Lastly, we consider whether the preliminary injunction is impermissibly overbroad. In Streif v. Bovinette (1980), 88 Ill. App. 3d 1079, 1085, 411 N.E.2d 341, 346, the court stated:

“There is an abiding certainty in both statutory and case law that an injunction should be as definite, clear and precise in its terms as is possible so that there may be no excuse or reason for failing to comprehend or obey its prohibitions. The act enjoined or directions given must be delineated with the particularity requisite to command obedience, enable enforcement, and allow an understanding of exactly what is forbidden. (Illinois Power Co. v. Latham (1973), 15 Ill. App. 3d 156, 163[, 303 N.E.2d 448]; Illinois School Bus Co. v. South Suburban Safeway Lines, Inc. (1971), 132 Ill. App. 2d 833, 840, 270 N.E.2d 200; Hoffmann v. Hoffmann (1965), 59 Ill. App. 2d 459, 462, 208 N.E.2d 579.) And certainly, where rights of the nature here concerned may be subject to curtailment, ‘[t]he restraint imposed by an injunction should not be more extensive than is reasonably required to protect the interests of the party in whose favor it is granted, and should not be so broad as to prevent defendant from exercising his rights.’ People ex rel. Traiteur v. Abbott (1975), 27 Ill. App. 3d 277, 282-83, 327 N.E.2d 130 [,134].”

In the case at bar, the directive of the trial court’s order is as follows:

“NOW, THEREFORE, IT IS ORDERED AND ADJUDGED:
1. That the Defendant, Bruce Rankin, is ordered to refrain from discharging or permitting others to discharge any firearm at or within the premises owned, controlled or occupied by him in Section 34, Township 19 North, Range 6 East of the Third Principal Meridian, situated in Sangamon Township, Piatt County, Illinois, until further order of this Court.”

Defendant complains that the order prohibits the discharge of firearms of any kind not only at the range, but anywhere on defendant’s property at any hour of the day or night, regardless of circumstances, thereby prohibiting hunting. Defendant also complains the order prohibits shooting in self-defense, but no court is going to render an advance authorization for defendant to shoot in self-defense. Plaintiffs concede the order for preliminary injunction may be overbroad, suggesting the order should prohibit discharging weapons on the firing range or other than as permitted by the Wildlife Code (Ill. Rev. Stat. 1987, ch. 61, par. 1.1 et seq.) and the rules and regulations of the Illinois Department of Conservation.

In addition, defendant suggests that the order could still be effective if it limited the use of the range to certain times of day and certain types of weapons. Based on the record before us, we are unable to determine what limitations would be appropriate, but the trial court is certainly empowered to consider evidence along these lines and modify the order.

We agree the scope of the order is too broad. Since the cause must return to the trial court for consideration of the permanent injunction, the trial court on remand should conduct a hearing as to the appropriate scope of the preliminary injunction order needed to protect plaintiffs and modify the order. It is appropriate at such hearing to consider the types of weapons that can be used, the place of their use, and hours of their use as well as consideration of defendant’s business, a federally registered gunsmith working on firearm firing mechanisms.

Affirmed in part; reversed in part and remanded with directions.

McCULLOUGH, P.J., and GREEN, J., concur.


text:
      In re CUSTODY OF T.R. W., a Minor (Dorothy Bellefont, Petitioner-Appellant, v. Lula Wright, Respondent-Appellee).
    Fourth District
    No. 4—88—0634
    Opinion filed February 23, 1989.
    Law Offices of Ora J. Baer II, of Champaign, for appellant.
    Steve Gray, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for the People.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Dorothy Bellefont filed a petition seeking custody of the minor, T.R.W., in the circuit court of Champaign County, pursuant to section 4 of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104). Petitioner is the minor’s paternal grandmother. After ascertaining that a dissolution proceeding was pending in the circuit court of Milwaukee County, Wisconsin, which included the matter of the minor’s care and custody, the circuit court of Champaign County determined it was an inconvenient forum and dismissed the petition. Further, the court ordered petitioner to conform to certain orders on file in the Wisconsin proceeding by returning physical custody of the minor to the minor’s mother. Petitioner appeals. We affirm.

The following is a chronological history of the relevant facts. On June 29, 1987, Lula H. Wright filed a petition for dissolution of marriage from Donney Bernard Wright in the circuit court of Milwaukee County. Lula petitioned the court for full custody of the couple’s three minor children, including T.R.W. A guardian ad litem was appointed to represent the interests of the minors on August 11, 1987. An order was entered on September 3, 1987, granting temporary custody of T.R.W. to both parents. Later, the temporary custody order was modified in that Lula was given sole temporary physical custody. On January 20, 1988, an order was entered requiring Lula and Donney and the three children to submit to psychological evaluations.

In April, Lula allowed T.R.W. to visit petitioner in Champaign, Illinois. The arrangements included a visit of three weeks, beginning April 22 and ending May 7, 1988. However, petitioner did not return T.R.W. as planned.

Petitioner filed her petition for custody on June 2, 1988. She alleged specific incidents in which T.R.W. had been physically abused by her mother. The specific incidents dated back to November 1986. Petitioner also alleged that T.R.W. was generally uncared for by her mother. A temporary order was entered in Champaign County granting petitioner custody of T.R.W.

When Lula received notice of the instigation of court proceedings in Champaign County, she immediately sought help in both the Wisconsin and Hlinois courts. In Wisconsin, a hearing was set for an order to show cause as to why petitioner should not be held in contempt for refusing to return T.R.W. to Lula. Petitioner had previously submitted to the jurisdiction of the Wisconsin court and had participated, to some extent, in those proceedings. In Illinois, Lula entered a special and limited appearance for purposes of alerting the court to the pending proceedings in Wisconsin.

Pursuant to statute, Judge John G. Townsend of the Champaign County circuit court discussed the matter with the Wisconsin circuit judge presiding over the dissolution proceeding, Judge Clarence R. Parrish. Judge Parrish requested the matter be concluded in Hlinois and handled entirely in Wisconsin. There followed the order from Judge Townsend dismissing the petition and ordering the return of T.R.W. to Wisconsin.

On appeal, petitioner essentially argues that only she can protect the minor child from abuse. She explains how she believes Lula has abused T.R.W. over a period of 17 months. Petitioner then states she has protected T.R.W. from further abuse through the filing of a petition in Champaign County. Petitioner has enrolled T.R.W. in a counseling program and also provided regular medical examinations for the minor. However, petitioner does not address the issue of which forum, Wisconsin or Illinois, is the proper one to handle the matter of T.R.W.’s care and custody.

The Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.) was aimed at resolving the conflicts arising out of “interstate custody disputes: children not returned after out-of-state visits; conflicting custody awards in two states; child abductions and concealments by fugitive parents; and denials of visitation rights in a distant state.” (Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody, and Excessive Modifications, 65 Cal. L. Rev. 978, 979 (1977).) The purposes of the Act clearly reflect the concern that an interstate custody dispute be resolved in the one forum with the closest connection to the child, the family of the child, and the evidence required to make an informed decision. Section 2(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2102(a)) states, in part:

“The general purposes of this Act are to:
1. avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
2. promote co-operation with the courts of other states to the end that a custody judgment is rendered in that state which can best decide the case in the interest of the child;
3. assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state.”

When proceedings have been started in more than one forum, the courts must jointly evaluate the matter, and the court which has the least interest in the minor must decline jurisdiction. Section 7(c) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2107(c)) states, in pertinent part:

“If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum.”

The. next section, section'8(a), provides, in pertinent part:

“A court which has jurisdiction under this Act to make an initial or modification judgment may decline to exercise its jurisdiction any time before making a judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” Ill. Rev. Stat. 1987, ch. 40, par. 2108(a).

In this case, upon being informed of the pending proceeding in Wisconsin, Judge Townsend consulted with the proper Wisconsin court authority concerning the extent of the proceedings therein. The record is clear that the Wisconsin proceeding had been pending for over a year, that the minor’s interests were represented in the court proceedings through the appointment of a guardian ad litem, and that petitioner’s actions were a hindrance to and not a help to the resolution of the matter in Wisconsin. Petitioner’s allegations of abuse are serious, but she has given no reason why these allegations cannot be considered in the pending dissolution proceeding in Wisconsin. The determination of the circuit court of Champaign County to decline jurisdiction was fully in line with the purposes and requirements of the Act. Based on the facts now before this court, we suggest a contrary determination by the trial court would have been gross error.

For the reasons stated above, the order of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    KAUFMAN GRAIN COMPANY, INC., Plaintiff-Appellant, v. THE DIRECTOR OF THE DEPARTMENT OF AGRICULTURE et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0249
    Opinion filed December 28, 1988.
    Modified on denial of rehearing March 28, 1989.

      Gary L. Smith, P.C., of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Agriculture.
    Michael G. Barton, of Bellatti & Barton, of Springfield, for appellee Capital Agricultural Property Services, Inc.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff in administrative review, Kaufman Grain Company, Inc. (Kaufman Grain), appeals a decision of the Illinois Department of Agriculture (Department) which ordered Kaufman Grain to reduce its damage discount assessment for grain delivered to it on behalf of Kostbade Farms. We reverse the circuit court’s decision which affirmed the decision of the Department.

This litigation arose out of a dispute between Capital Agricultural Property Services, Inc. (CAPS), and Kaufman Grain concerning the quality of the landlord’s share of the 1985 corn crop grown on the Kostbade Farms near Crown Point, Indiana. CAPS manages Kostbade Farms for its owner, and the landlord’s share of the 1985 corn crop was delivered to Kaufman Grain on instructions of CAPS.

Following the delivery of the landlord’s share of the 1985 Kostbade Farms corn crop, Kaufman Grain changed its assessment of the amount thereof which was damaged and eventually assessed a damage discount of $12,246.60 with respect to the corn. On April 22, 1987, CAPS wrote the Department, complaining of the amount of this damage discount assessment. On May 6, 1987, the Department forwarded a copy of CAPS’ complaint to Kaufman Grain and invited it to submit a response thereto. On May 8, 1987, Kaufman Grain submitted to the Department a written response to CAPS’ complaint. In a letter dated May 14, 1987, the Department informed Kaufman Grain in view of its response to CAPS’ complaint, it appeared the matter would not be settled without a hearing. Therefore, “pursuant to Section 6 of The Illinois Grain Dealers Act (Ill. Rev. Stat., Chapter 111, Paragraph 301 et. seq.), Section 18a of The Public Grain Warehouse & Warehouse Receipts Act (Ill. Rev. Stat., Chapter 114, Paragraph 214.1 et. seq.), and the Administrative Procedures [sic] Act of Illinois (Ill. Rev. Stat., Chapter 127, Paragraph 1001, et seq.),” a hearing was scheduled on CAPS’ complaint.

The first session of the hearing on CAPS’ complaint was held on May 29, 1987. At that hearing, Kaufman Grain filed a written motion to dismiss the proceedings. The motion alleged (1) the Department had no subject matter jurisdiction over the dispute between Kaufman Grain and CAPS; (2) the May 14, 1987, notice of hearing cited no statute or rule which allows the Department to settle disputes between a grain producer and a grain dealer or a grain warehouse; and (3) the proceeding deprived Kaufman Grain of its right to a jury trial. In arguing against this motion, the Department’s counsel, John L. Narmont, stated:

“[T]he Department would have jurisdiction, I think, on two grounds to have the hearing. First one to determine in the course of this hearing that there is some regulatory or bookkeeping violation or licensing issue that might arise, but since— but that may well result in a subsequent hearing, so the Department would be interested and, secondly, the Department is in a position to determine whether there has been a failure to pay for grain which has been sold to the facility.”

In response to a statement by Kaufman Grain’s counsel that it had received no notice of a bookkeeping or operations violation, Mr. Narmont stated:

“I believe that we cited in the notice [of hearing] Section 6. Section 6 empowers the Department to — may upon its own motion and shall upon the verified complaint in writing of any person set forth facts, investigate. *** I wanted to make clear from the beginning, from the standpoint of the Department, we view this more as an investigatory function here to determine if there’s any violation under the statute or regulation which would give rise to a license revocation hearing and don’t consider that this particular case as is set forth, that at this time, that’s the posture of the case.”

In denying Kaufman Grain’s motion to dismiss, the hearing officer stated:

“I think Section 6 of the Grain Dealers Act does give statutory authority to proceed on this matter. I think — I do agree with Mr. Narmont in the fact that the results of this hearing cannot be grounds for suspension or revocation of a license of Kaufman Grain Company. It would have to be a separate matter considered under a separate notice of hearing at a later date. The Department does have a lengthy precedent in holding hearings of this type to adjudicate claims filed by producers against licensees. These claims, if unresolved, would result probably in a claim that would have to be adjudicated in a formal manner, which [sic] as an insolvency proceeding, so I don’t see why we can’t proceed here today so the motion is formally denied.”

When asked by Kaufman Grain’s counsel what relief the Department could grant, the hearing officer stated:

“In past cases, I’ll either decide that the dealer licensee is ordered to pay certain damages to the producer or reduce the amount of the claim to a certain point and order him to pay that or deny the claim in its entirety and dismiss the matter.”

In again addressing Kaufman Grain’s motion to dismiss at the conclusion of the first session of the hearing, the hearing officer stated:

“The bottom line as far as the Department’s responsibilities are to guarantee that producers of grain are compensated for grain in a fair and equitable manner. I think this particular complaint or claim we have before us today alleges that there are monies due to the claimant from the Respondent here, which is Kaufman Grain Company, Inc. The Department has a statutory power and responsibility to make sure that producers of grain who are dealing with licensed grain elevators are treated in a fair manner. *** I think the Department’s position in this matter has been until this claim is proven to be valid, the Department has no position on it. If this claim were to be proven valid, then the Department has the responsibility to make sure the licensee, Kaufman Grain Company, Inc., would honor this commitment and make a monetary settlement with the claimant ***. *** [I]f it is valid, and if it is, I think I am empowered by Section 6 to hear a case like this and make a determination, whether it is a valid claim.”

Following the hearing, the hearing officer, in a decision entered October 2, 1987, held there was an insufficient evidentiary basis for Kaufman Grain increasing the damage discount on the com in issue to $12,246.60. Therefore, the hearing officer ordered Kaufman Grain to reduce its damage discount to $2,160.73, which was the amount of the original damage discount for the landlord’s share of the 1985 com crop grown on the Kostbade Farms.

In appealing from the circuit court decision which affirmed the hearing officer’s decision, Kaufman Grain asserts (1) the Department had no jurisdiction to adjudicate the dispute between it and CAPS because (a) the complaint which CAPS filed with the Department was not verified, (b) the adjudication of such disputes by the Department is a usurpation of the judicial power and violates the doctrine of separation of powers, and (c) the notice of hearing which Kaufman Grain received does not properly identify the Department’s authority for adjudicating disputes such as this; (2) in adjudicating the dispute between it and CAPS, the Department relied on purported rules which are void because they have never been properly promulgated; (3) the hearing officer’s decision is void because the hearing officer did not make adequate findings of fact and conclusions of law; and (4) the hearing officer’s decision is contrary to the manifest weight of the evidence.

We find Kaufman Grain’s argument the Department improperly relied on rules which have not been properly promulgated in adjudicating the dispute between it and CAPS dispositive of this appeal. Kaufman Grain contends the following statement of the hearing officer indicates the Department has rules of general applicability which allow it to in effect enter orders awarding damages against grain dealers and grain warehouses on the basis of grain producer complaints:

“In past cases, I’ll either decide that the dealer licensee is ordered to pay certain damages to the producer or reduce the amount of the claim to a certain point and order him to pay that or deny the claim in its entirety and dismiss the matter.”

Kaufman Grain contends this purported rule is invalid because it was not subjected to the applicable notice and comment requirements and is not on file with the Secretary of State as required by the relevant provisions of the Illinois Administrative Procedure Act (APA) (Ill. Rev. Stat. 1985, ch. 127, pars. 1004(c), 1005.01). Kaufman Grain further states it “did not have any knowledge of the Department’s rule and, in fact, objected to the Department’s authority to hear the case and award damages.” Kaufman Grain requests an award of reasonable attorney fees pursuant to section 14.1(b) of the APA (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1(b)) on the basis the Department has exceeded its jurisdiction by establishing a rule of general applicability which was not properly promulgated and hearing a case which it had no jurisdiction to adjudicate.

The Department asserts Kaufman Grain waived its argument the Department relied on an improperly promulgated rule by not presenting that argument during the proceedings before the Department. The Department also asserts it properly relied on section 18a of the Public Grain Warehouse and Warehouse Receipts Act (Ill. Rev. Stat. 1985, ch. 114, par. 214.28) as authority for adjudicating the CAPS-Kaufman Grain dispute. It maintains authority to adjudicate such disputes can be found by direct reference to section 18a. The Department argues, therefore, no administrative rules are necessary in order for it to be able to take the action it did in this case.

Generally, failure to assert a particular argument during proceedings before an administrative agency results in waiver of the point, and the argument may not be considered on appeal. (Leffler v. Browning (1958), 14 Ill. 2d 225, 151 N.E.2d 342.) This principle is not, however, applicable to the question of the authority of administrative tribunals to adjudicate causes. This question may be considered for the first time on appeal, despite the failure of any of the parties to raise it in proceedings before an administrative agency. See Bushnell v. Industrial Board (1916), 276 111. 262,114 N.E. 496.

In the present case, Kaufman Grain’s counsel stated at the May 29,1987, hearing:

“I’m not going to add much additional to my motion [to dismiss] other than to say that I don’t believe that the Department has subject matter jurisdiction of the complaint which we have before us at this time. The notice [of the filing of CAPS’s complaint and of the hearing] which is in the Department’s Exhibits 1 through 3 does not cite any rule or statute that I’m aware of that gives the Department jurisdiction to proceed with this complaint and I ask that it be dismissed ***.”

Prior to the presentation of evidence at the August 11, 1987, hearing, counsel for Kaufman Grain stated:

“[Ujnder the Administrative Procedure Act we’re all familiar with, notice has to be given as to what particular statutory provision or rule is involved, and the only thing the Department has alleged is a Section 6 violation and that has nothing to do with grading grain or anything of that nature. I don’t know of any rules the Department has about grading and assessing grain, certainly none have been pointed out previously in this hearing.”

Thus, although Kaufman Grain’s counsel did not explicitly state Kaufman Grain objected to the proceeding on the basis of the Department’s failure to properly promulgate rules and file them with the Secretary of State, Kaufman Grain’s counsel implied he had been unable to locate any Department rules concerning adjudication of cases of this type by the Department. For this reason, and because it was not essential the question whether the Department properly promulgated rules permitting it to adjudicate disputes of this kind be specifically raised in the proceedings before the hearing officer, we hold this question may be considered on review. We note parenthetically there is little likelihood the Department was prejudiced as a result of Kaufman Grain’s failure to specifically raise this issue in the proceedings before the hearing officer.

Section 3.09 of the APA defines “rule” as:

“[Ejach agency statement of general applicability that implements, applies, interprets, or prescribes law or policy, but does not include (a) statements concerning only the internal management of an agency and not affecting private rights or procedures available to persons or entities outside the agency, (b) informal advisory rulings issued pursuant to Section 9, (c) intra-agency memoranda or (d) the prescription of standardized forms.” (Ill. Rev. Stat. 1985, ch. 127, par. 1003.09.)

Section 5.01 of the APA (Ill. Rev. Stat. 1985, ch. 127, par. 1005.01) prescribes public notice and comments requirements which administrative agencies must generally follow in enacting rules. Unless a rule is promulgated in conformity with these requirements and is filed with the Secretary of State, it is not valid or effective against any person or party and may not be invoked by an administrative agency for any purpose. Ill. Rev. Stat. 1985, ch. 127, par. 1004(c).

An amendment of an agency procedure, such as adoption of a new financial formula for the payment of nursing homes for medical services, constitutes the adoption of a rule and is subject to the above requirements. (Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; see also Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 481 N.E.2d 1004.) However, not all statements of agency policy must be announced by means of published rules. When an administrative agency interprets statutory language as it applies to a particular set of facts, adjudicated cases are a proper alternative method of announcing agency policies. NLRB v. Wyman-Gordon Co. (1969), 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426; Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 395, 412, 527 N.E.2d 538, 549-50.

In the present case, the Department has apparently adopted a policy under which it adjudicates disputes between grain producers and grain dealers and warehouses concerning the quality of grain. It cannot be seriously disputed such a policy constitutes a “rule” within the meaning of section 3.09 of the APA (Ill. Rev. Stat. 1985, ch. 127, par. 1003.09), and the Department does not contend such a policy is not a rule for purposes of the APA. Moreover, the Department does not contend it complied with any of the APA-mandated procedures in adopting this rule.

None of the statutes mentioned in the previously quoted statements of Mr. Narmont and the hearing officer during the administrative proceedings clearly inform the public the Department adjudicates disputes such as this. The same is true of section 18a of the Public Grain Warehouse and Warehouse Receipts Act (Ill. Rev. Stat. 1985, ch. 114, par. 214.28), on which the Department relies on appeal. Furthermore, the public is provided with no information concerning the procedural rules which apply to proceedings before the Department involving such disputes. The Department adjudicating a broad category of disputes without having properly adopted a single administrative rule relevant to such proceedings is obviously a quite different type of situation from an administrative agency interpreting statutory language as it applies to specific facts. The Department’s failure to comply with the relevant provisions of the APA in promulgating the rules here at issue renders the rules invalid. (Senn Park, 104 111. 2d 169, 470 N.E.2d 1029.) Consequently, the Department was without authority to adjudicate the CAPS-Kaufman Grain dispute and to enter the order which it did in this case. Ill. Rev. Stat. 1985, ch. 127, par. 1004(c); cf. Townships of Almira, Blaine, Colfax, Crystal Lake, Gilmore, Homestead, Inland, Joyfield & Weldon v. Benzie County Tax Allocation Board (1978), 80 Mich. App. 755, 265 N.W.2d 39.

The cases which the Department cites in support of its position as to this issue (Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369 N.E.2d 875; Alexander v. Director, Department of Agriculture (1983), 111 Ill. App. 3d 927, 444 N.E.2d 811) do not require a result different from that which we here reach. Neither of these cases addresses the failure of an administrative agency to promulgate rules in accordance with the requirements of the APA. Therefore, they are of no direct relevance to the dispositive issue in this case.

We further conclude Kaufman Grain is, under the facts of this case, entitled to an award of the attorney fees which it reasonably incurred in this litigation. Section 14.1(b) of the APA provides:

“In any case in which a party has any administrative rule invalidated by a court for any reason, including but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule, the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorney’s fees.” (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1(b).)

The import of our decision in this case is Kaufman Grain had the Department’s de facto rules providing for adjudication by the Department of disputes between grain producers and grain dealers and warehouses invalidated.

Section 14.1(b) of the APA does not clearly state whether an attorney fee award in a case such as this is to be limited to the fees incurred in the administrative review proceeding or whether fees incurred in proceedings before the administrative agency should also be awarded. However, one of the purposes of this provision is to give those subject to regulation an incentive to oppose doubtful rules where compliance would otherwise be less costly than litigation. (Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 461 N.E.2d 567.) If attorney fee awards were available only with respect to administrative review proceedings, the above-mentioned purpose would often be frustrated, for proceedings before an administrative agency are quite often more costly and time consuming than administrative review proceedings. Also, subsection 14.1(a) of the APA provides for awards of costs, including reasonable attorney fees, on the basis of untrue allegations made without reasonable cause by administrative agencies in administrative proceedings which are not the subject of judicial review. (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1(a).) This provision is indicative of a general legislative intent to permit awards of attorney fees incurred in administrative proceedings which are based on invalid administrative rules, when such causes proceed to court for judicial review. For these reasons, we hold that on remandment to the circuit court, the court shall award Kaufman Grain the amount of attorney fees which it reasonably incurred in this litigation, including the fees incurred in the proceedings before the Department.

To summarize, we hold (1) the issue of whether the Department of Agriculture improperly promulgated rules providing for adjudication by the Department of disputes of this type may be considered on review; (2) the Department’s initiating the practice of adjudicating disputes of this type amounted to the promulgation of administrative rules within the meaning of the APA; (3) the Department did not comply with the APA in promulgating these rules; (4) no statutory language provides a basis for adjudication by the Department of disputes of this type absent administrative rules which specifically provide for adjudication of such disputes; (5) the Department’s hearing officer was without authority to enter the order which he did in this cause; and (6) Kaufman Grain caused an administrative rule or rules to be invalidated in this proceeding and is thus entitled to an award of the attorney fees which it reasonably incurred in this litigation.

The decision of the circuit court is reversed, and this cause is remanded to the circuit court with directions to reverse the order of the Department of Agriculture and enter an order awarding Kaufman Grain Company, Inc., the amount of the attorney fees which it reasonably incurred in this litigation. Further, Capital Agriculture Property Services, Inc., is ordered to return the warehouse receipt or the value thereof to Kaufman Grain.

Reversed and remanded with directions.

LUND and SPITZ, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAURA CARLSON, Defendant-Appellant.
    Third District
    No. 3—88—0364
    Opinion filed February 24, 1989.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Laura Carlson, was charged in Will County with one count of murder for the death by asphyxiation of her four-month-old daughter, and one count of attempted murder for the attempted suffocation of her 1 ^-year-old son. The defendant withdrew her pleas of not guilty and entered pleas of guilty but mentally ill. A negotiated sentence was agreed upon, and on December 12, 1986, the defendant was sentenced to concurrent prison terms of 20 years and 6 years. Thereafter, the defendant filed a timely motion to vacate her guilty pleas which was denied by the trial court after a full evidentiary hearing. On appeal the defendant contends that the trial court abused its discretion in denying the motion to vacate since she had a defense worthy of consideration and because she may have misapprehended the law concerning insanity. We affirm.

On the evening of July 7, 1986, the Cresthill City police were dispatched to the defendant’s apartment. Upon initial questioning, the defendant told the police that an intruder had entered the third-floor apartment through the bedroom window and had harmed the children while she was in the shower. After noticing that there was no balcony underneath the third-story window, the police requestioned the defendant. This time, the defendant admitted that she killed her daughter, Amanda, and attempted to kill her son, Antonio.

The defendant told Investigator Timothy Simenson that because of the many problems that she had to face in her life, the defendant felt that her children would be better off dead. The defendant stated that she went into the bedroom, kissed each child, and then held a pillow over the head of each of her children until she thought that each child was dead. When she had finished, the defendant opened the bedroom window and pushed out the screen on the window. The defendant stated that the damage to the screen would indicate that someone had made a forced entry into the apartment. Shortly thereafter, the defendant realized that Antonio was not dead. The defendant told Investigator Simenson that she could not bring herself to suffocate the child again, so she went across the hall to the neighbor’s apartment for help. When questioned why she had fabricated her initial story, the defendant said that she was afraid of going to jail.

Two psychiatrists were appointed to examine the defendant. Dr. Kruglik found her to be fit to stand trial and sane at the time of the alleged offenses. Dr. Guschwan found that while the defendant was fit to stand trial, if he were called to testify he would find her insane at the time of the alleged offenses.

During the hearing at which the defendant entered her pleas of guilty but mentally ill, the trial judge thoroughly admonished the defendant pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402). The defendant acknowledged that she had fully discussed the matter of entering the guilty pleas with her attorney, Barbara Badger (Badger). The defendant also said that she was completely satisfied with her attorney’s representation. The trial judge, who knew of the defendant’s hearing problem, specifically asked the defendant if she could hear him and if she had her hearing aid on. The defendant responded affirmatively to both questions. Further, the defendant stated, in response to the trial judge’s inquiry, that the medication she was taking did not affect her ability to understand the trial judge’s questions.

At the hearing on the defendant’s motion to vacate, the defendant stated that she did not have her hearing aid on when she entered her pleas of guilty but mentally ill. Moreover, the defendant claimed that she did not recall the trial judge asking her about the hearing aid or about the medication. The defendant contended that she could not hear and did not understand the majority of the questions that the trial judge had asked her at the previous hearing. Most importantly, the defendant said that she did not, at the time she entered her pleas of guilty, understand that there was a possibility that she could be found not guilty by reason of insanity.

The State presented the testimony of two witnesses at the defendant’s motion to vacate. Ina Lennon (Lennon), an investigator with the public defender’s office, testified that she was present when Badger met with the defendant at the Will County jail and explained the defense of insanity to her. Lennon stated that Badger discussed the reports of both psychiatrists and specifically read the section of the criminal code dealing with defense of insanity to the defendant. Lennon further stated that Badger broke the statutory language down into laymen’s terms and that the defendant indicated that she understood.

Badger then testified that she was appointed to represent the defendant and that she met with the defendant several times in the Will County jail. Badger specifically recalled a conference with the defendant at the jail in early November at which Lennon was also present. Badger stated that at this meeting she discussed the potential defense of insanity to the defendant. She claims that she read the statutory provisions on insanity to the defendant, and then broke each sentence down into laymen’s terms to make sure the defendant understood her. She also apprised the defendant of the two psychiatrists’ reports and their respective findings. Badger further told the defendant that if they went to trial, the State would present evidence that would make it difficult for her to prevail on an insanity defense. In particular, Badger was concerned with the defendant’s initial statements to the police in which she attempted to cover up her actions by claiming that an intruder had harmed her children. Badger advised the defendant that the jury, after hearing this evidence, could determine that the defendant had full knowledge of what had happened, thus negating the inability to distinguish right from wrong prong of the insanity defense.

Furthermore, Badger informed the defendant that if the defendant chose to present the defense of insanity, the State was prepared to have Assistant State’s Attorney Kathleen Patton testify. Patton would testify that she had a conference with the defendant on an unrelated matter on the day of the incident. Patton would claim that she had no problem communicating with the defendant and that the defendant appeared lucid. Additionally, Patton would state that the defendant had indicated to her that she was going to do something to change her life.

Moreover, Badger stated that she discussed with the defendant the adverse impact of the defendant’s admission that she had voluntarily taken cocaine bn the date of the incident. Badger informed the defendant that this might damage her potential insanity defense. Badger explained that jurors would not likely feel sympathy for a mother who voluntarily ingested cocaine on the same day she killed one of her children and attempted to kill her other child.

Finally, Badger testified that she specifically discussed the following options with the defendant: proceed to trial with an insanity defense, seek a negotiated plea, enter a blind plea of guilty, or enter a blind plea of guilty but mentally ill. The defendant indicated to Badger that she understood each of her options and that she wanted to plead guilty but mentally ill.

Following this testimony and arguments of counsel, the trial judge found that defense counsel had fully apprised the defendant of the potential defense of insanity and that her guilty pleas were not involuntary. On appeal the defendant maintains that, because she had a defense worthy of consideration, she was thereby entitled to withdraw her guilty pleas. We do not agree.

Illinois courts have long held that the trial judge’s discretion in determining whether a guilty plea may be withdrawn will ordinarily not be disturbed unless it appears that the guilty plea was “entered through a misapprehension of the facts or the law, where the defendant has any defense worthy of consideration by the jury, or in any case where it appears that the ends of justice will be best served by submitting the case to a jury.” (People v. King (1953), 1 Ill. 2d 496, 500.) The defendant attempts to argue that this language requires judges to vacate guilty pleas any time that a defendant asserts a defense that might be “worthy of consideration.” Although no Illinois case has specifically interpreted what is meant by the general phrase “defense worthy of consideration,” we find that the defendant’s broad interpretation and application are supported neither by case law nor by public policy.

To support her position, the defendant relies heavily on the cases of People v. King (1953), 1 Ill. 2d 496, and People v. Cosby (1985), 137 Ill. App. 3d 854. These cases are readily distinguishable from the present case. In King, defense counsel was allegedly promised by the assistant State’s Attorney that if he had the defendant plead guilty to murder and armed robbery, the death penalty would not be imposed. (King, 1 Ill. 2d at 501.) The defendant, relying on defense counsel’s advice, subsequently pleaded guilty, and the defendant was sentenced to death. (King, 1 Ill. 2d at 499-500.) The court vacated the defendant’s guilty plea, finding that the defendant had been misled. (King, 1 Ill. 2d at 503.) Similarly, in Cosby, the appellate court vacated the defendant’s guilty plea where the defendant was apparently misled by his counsel. (Cosby, 137 Ill. App. 3d at 860.) The defendant was allegedly told by the public defender that a mistaken belief as to the age of the victim would not be a defense to the charge of aggravated criminal sexual assault. (Cosby, 137 Ill. App. 3d at 856.) The court found that since the statute specifically provided that a reasonable belief as to the alleged victim’s being of age is an absolute defense to a charge of aggravated criminal sexual abuse, the defendant had a defense worthy of consideration. Cosby, 137 Ill. App. 3d at 860.

In the case at bar, the defendant was not misled or misinformed by her attorney. In fact, the record clearly supports the trial court’s determination that Badger thoroughly explained the potential defense of insanity to the defendant. Unlike King and Cosby, the defendant fully understood the options available to her and voluntarily chose to plead guilty but mentally ill.

Additionally, this court notes that both of the defendants in King and Cosby were found to be under a misapprehension of either fact or law subsequent to entering their respective guilty pleas. The defendant in King was under the misapprehension of fact that the death sentence would not be imposed. (King, 1 Ill. 2d at 501.) The defendant in Cosby was under the misapprehension of law that his mistaken belief as to the victim’s age was not a defense to the charge of aggravated criminal sexual assault. (Cosby, 137 Ill. App. 3d at 856.) Thus, the guilty pleas in both King and Cosby were not vacated merely on the grounds that the defendant had a “defense worthy of consideration,” but also because the defendants’ guilty pleas were “entered through a misapprehension of the facts or the law.”

This court has found no Illinois case that has vacated a defendant’s guilty plea solely or merely on the basis that a defendant might have a defense worthy of consideration. Such a rule would totally undermine the finality of guilty pleas. As the sentence is, of necessity, only imposed after the guilty plea is entered, any defendant dissatisfied with the sentence would be in a position to ask that his plea be set aside for the reason that he had a defense worthy of consideration. Such a result would be unjust and unfair and would disrupt the orderly administration of the criminal courts. While having a defense worthy of consideration may be a significant element of a motion to withdraw a guilty plea, it is, standing alone, not a sufficient element.

Finally, the defendant attempts to argue that she entered a plea of guilty under a misapprehension of the law of insanity. By reason of the facts previously noted, the defendant’s claim in this regard is also without merit.

For the reasons given, we affirm the decision of the trial court.

Affirmed.

BARRY and STOUDER, JJ., concur.