text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE L. POSEDEL, Defendant-Appellant.
    Second District
    No. 2—89—0010
    Opinion filed May 28, 1991.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Dale L. Posedel, appeals his conviction in a bench trial of two counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 12—4(a), (b)(1)) and his sentence to the Department of Corrections for a four-year term. He raises these issues: (1) whether the court committed reversible error when it refused to consider a prior inconsistent statement of a witness as substantive evidence under section 115—10.1 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.1); (2) whether the court erred in finding that the evidence proved him guilty beyond a reasonable doubt of aggravated battery; (3) whether the court erred in entering convictions on both counts of aggravated battery (great bodily harm and use of deadly weapon); and (4) whether the court abused its discretion in imposing a four-year sentence.

Inasmuch as the State concedes the third issue under the authority of People v. King (1977), 66 Ill. 2d 551, and we agree with that concession, the court’s judgment of conviction entered on count II (aggravated battery by use of a deadly weapon) is vacated. No issue of remand for resentencing is presented because no sentence was separately imposed for that conviction.

Prior to the court hearing testimony, it received the stipulations of the parties that (1) the physician who treated the victim’s, Diane Pietschman’s, injuries would testify that she suffered a large hematoma, bruising and swelling in her eye, and two stitches were necessary to close the wound above her eye; and (2) that People’s exhibit No. 1 was the red shirt worn by the defendant on the night of the offense.

Diane Pietschman then testified. She stated that on August 16, 1988, she and a friend were at the Drinks and Things Lounge in Waukegan. She drank three to four beers in two to three hours’ time. At one point during the evening, there was some pushing and shoving over a pool game. The defendant, Dale Posedel, wearing a red polo-style shirt, and his twin brother, Dennis Posedel, wearing a white shirt, were two of the persons involved in the argument. The other two were Mike Christian and his wife, Rhonda. Pietschman stated she did not know the twins before that evening. The twins were kicked out of the lounge following this altercation over the pool game.

They returned a short time later, and Pietschman saw that the twin in the red shirt had a knife. She told the bartender, Keith Herberger, to take the knife away. Herberger did and then kicked the twins out again. They were followed outside by five or six people. Everyone came back in then, including the twins. One of them said he lost his wallet. Pietschman testified the “guy with the white shirt” was being nice, but the guy with the red shirt got thrown out again because “he didn’t want to quit fighting.”

About 15 to 20 minutes later, Pietschman went out, alone, to the parking lot to get cigarettes from her car. She said that when she went out, the twin wearing the white shirt was still inside talking with Mike Christian. Walking back to the lounge, Pietschman saw “the guy with the red shirt.” He was standing in the doorway of the lounge, holding an axe in front of him with both hands. She described the axe as double-bladed with a two- to three-foot-long handle. When asked on cross-examination if she was talking about a wide blade or a point, she demonstrated, stating, “It curves on both sides.”

Pietschman testified that the defendant threatened her, stating, “I’m going to kill you, bitch.” She turned to run back to her car and, looking back, she saw the defendant coming. She did not remember being hit. She only remembered waking up later, in an ambulance. She testified that the area where she was attacked was “pretty well lit” and she saw the defendant very clearly. Pietschman testified that the twin whose knife had been taken away by the bartender was the same one who threatened her with the axe. She stated she supposed, but did not know, that the twins were identical twins. She stated she “could probably tell them apart.” She picked each twin’s picture out of a separate six-picture photographic lineup and identified the defendant, Dale Posedel, as the one who threatened her with the axe.

Waukegan police officer Brian Hanna testified that, when he arrived at the lounge, Diane Pietschman was able to provide a description of her attacker who she said was wearing a red shirt and reddish jeans. Hanna talked -with the bartender, Keith Herberger, and then went to the hospital. He returned to the lounge shortly thereafter because Waukegan police officer Reid broadcasted that the possible offender was in the area. When Hanna arrived back at the scene, Officer Reid had arrested Dennis Posedel, who was wearing a white shirt and blue jeans. No axe was found after a search of the immediate and surrounding area, which included a trailer park and field. A motorcycle which Officer Hanna subsequently observed the defendant riding was parked at the lounge at the time Hanna came back from the hospital that night, but the defendant was not then in the vicinity.

Waukegan police officer Richard Reid stayed at the lounge while Officer Hanna went to the hospital. The bartender asked Reid to stay on the premises while he had two motorcycles towed away. During that time, two men who came from around a fence started to walk toward Reid’s squad car. The one who was wearing a red shirt, however, turned and went back around the fence. The other man in a white shirt and jeans continued on to Reid’s squad. Reid asked the man his name; the man stated his name was Dennis Posedel, and Reid arrested him.

The State then rested, and the defendant’s motion for a directed finding was denied. The defendant then presented the testimony of the bartender, Keith Herberger.

Herberger was one of the people who had been playing pool with the twins. He testified that Diane Pietschman reported to him that the twin in the red shirt had a knife; he did not remember telling Officer Hanna that the man he took the knife away from had on a white shirt. He remembered talking with Officer Hanna that night. His memory of the incident was fresh then, and what he told Officer Hanna was the truth. Later, after the knife incident, Herberger and a lounge patron, Mike Sperry, swung open the door to the lounge to go outside and saw “the man in the white shirt” standing with a pickaxe holding it like a baseball bat. The man said to Herberger, “Call the cops, call the cops.” Neither Herberger nor Sperry went outside at that time, and Herberger called the police. This incident occurred before Herberger knew Diane Pietschman had been injured. After he called the police, Herberger went outside, but there was nobody to be seen. He described the pickaxe for the court as having about a three-foot-long handle and having “two points coming on each end.”

Michael Sperry, a regular patron at the lounge, testified that he arrived just after Herberger had confiscated the knife. As Sperry was going outside, he saw at the door the twin in the white shirt holding a pickaxe. The twin raised the pickaxe up, “sort of started coming at” Sperry and said, “Call the cops” or something to that effect. Dennis Posedel was arrested as the man who stood in the doorway with the pickaxe and threatened Sperry.

The parties stipulated that, if called to testify, Officer Reid would say that he arrested Dennis Posedel and that Mike Sperry identified Dennis Posedel as the man with the white shirt that threatened him with a pickaxe. It was also stipulated that Officer Hanna would testify he was told by Keith Herberger that the knife had been confiscated from the man in the white shirt.

The court found the defendant guilty of both counts of aggravated battery. Trial counsel’s timely filed post-trial motion challenging only the sufficiency of the evidence was later supplemented by private counsel hired by the defendant. The supplemental motion alleged that trial counsel had rendered ineffective assistance of counsel with regard to her failure to allow the defendant to elect to testify or not and her failure to subpoena Dennis Posedel to testify. The supplemental post-trial motion was denied after a hearing.

At sentencing, the court acknowledged that it could impose a penalty of up to 10 years where “there’s wanton cruelty and heinousness involved” and also due to the defendant’s prior convictions. The court indicated it was reluctant to do so, however, since it felt that would almost be a punishment of the defendant for rejecting the pretrial conference offer of probation. Yet, in light of the evidence, the court felt a term of probation would deprecate the seriousness of the offense. Accordingly, it sentenced the defendant to serve four years in the Department of Corrections.

The defendant first contends he was denied a fair trial when the court refused to consider as substantive evidence bartender Herberger’s prior inconsistent statement to Officer Hanna that he took the knife away from the twin who had on a white shirt, that is, Dennis Posedel, the defendant’s brother. Herberger’s trial testimony was that he took the knife away from the twin who had on a red shirt, that is, Dale Posedel, the defendant. Herberger’s trial testimony thus was corroborative of Diane Pietschman’s testimony that the twin who had the knife taken away from him was the same one who threatened to kill her while holding a double-bladed axe. The court ruled that it could only consider the prior inconsistent statement as impeachment of Herberger’s testimony. Pointing to section 115 — 10.1 of the Code, the defendant asserts the court’s ruling was error and the cause must be remanded for a new, fair trial.

The defendant vigorously argued the substantive versus impeachment issue with the court at trial, albeit not specifically in terms of the provisions of section 115—10.1. Yet, the defendant failed to raise the issue in either his original or supplemental post-trial motion. The State argues the issue therefore may be considered waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186 (to preserve an issue for review “[b]oth a trial objection and a written post-trial motion raising the issue are required” (emphasis in original)).) Further, the State argues, the plain error exception should not be invoked where the evidence was not closely balanced nor was the alleged error so prejudicial that the accused has been denied a fair trial. (See People v. Henderson (1990), 142 Ill. 2d 258, 311; see also People v. Davis (1991), 208 Ill. App. 3d 33, 38-39.) The defendant argues that the evidence the court refused to consider as substantive related directly to the credibility of the State’s prime witness, Diane Pietschman, on the identity of her attacker, and, had it been admitted as substantive evidence, it would have cast grave doubt over Pietschman’s story. Thus, he argues, its nonadmission denied him a fair trial.

The defendant did not testify at trial, and the State agreed below that the case turned on Pietschman’s testimony. As such, the defendant’s guilt hinged entirely on his accuser’s credibility, and no error should be permitted to intervene. (See People v. Lawler (1991), 142 Ill. 2d 548, 561-62; People v. Emerson (1983), 97 Ill. 2d 487, 502.) Because we believe the error alleged, if indeed it was error, reflects on the fairness of the trial, we find the plain error exception is applicable, and we proceed to consider the merits of the issue. 134 Ill. 2d 615(a).

Section 115—10.1, which provides for the substantive admissibility of prior inconsistent statements in criminal cases, was added to the Code by Public Act 83—1042, effective July 1, 1984. Prior to that, the use of a prior inconsistent statement was limited to impeachment and was severely restricted when impeachment was sought by the party who had called the witness to the stand. If a prior inconsistent statement does not meet the requirements for substantive admissibility as spelled out in section 115—10.1, those same previous limitations still apply. Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 642 (1984) (hereafter Steigmann article).

Section 115 — 10.1 provides in full:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.

Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.” Ill. Rev. Stat. 1989, ch. 38, par. 115—10.1.

Because Herberger’s prior inconsistent statement does not fall within the subsection (c)(1) category, nor was it written, signed, or otherwise recorded (subsection (c)(2)(C)), in order to be admitted as substantive evidence it had to meet the requirements of subsections (a), (b) and (c)(2)(B). That is, Herberger’s prior statement had to be inconsistent with his testimony at trial, he had to be subject to cross-examination concerning the statement, and the statement had to narrate, describe, or explain an event or condition of which he had personal knowledge and the making of the statement had to be acknowledged by him at trial.

We find the statement meets all but the last of these requirements. Herberger did not acknowledge that he told Officer Hanna that he took the knife away from the twin wearing the white shirt. During direct examination, Herberger testified he was informed by Diane Pietschman that one of the twin brothers had a knife, but that it was the brother who had the red shirt, not the one who was in the white shirt. On further direct examination, Herberger testified he did “not exactly” remember telling Officer Hanna that the man he took the knife away from had on a white shirt, explaining “[it was] so long ago, you know.” He did remember talking with Officer Hanna that night; he agreed that at the time he talked with Officer Hanna his memory was fresh because the incident had just occurred. He also agreed that “what [he] told [Officer Hanna] then was the truth.” Nonetheless, Herberger was unable to acknowledge his prior statement because he could “not exactly” remember what it was, and his recollection at trial was that it was the twin in the red shirt who had the knife.

“Substantive evidence is evidence which is ‘adduced for the purpose of proving a fact in issue, as opposed to evidence given for the purpose of discrediting a witness *** or of corroborating his testimony.’ (Black’s Law Dictionary 1281 (5th ed. 1979).)” (People v. Redd (1990), 135 Ill. 2d 252, 302.) Where a prior statement fails to meet the requirements of section 115—10.1, it is not admissible as substantive evidence. (Redd, 135 Ill. 2d at 313-14.) Because the defendant was affirmatively damaged, as opposed to being merely disappointed, by his witness Herberger’s testimony that the possessor of the knife wore a red shirt, he was entitled to have Herberger’s prior inconsistent statement to Officer Hanna admitted to impeach Herberger’s credibility. Ill. Rev. Stat. 1989, ch. 38, par. 115—10.1 (“Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement *** fails to meet the criteria set forth herein”); Steigmann, 72 Ill. B.J. at 642.

Insofar as defendant’s argument here appears to suggest that the trial court erred by not exercising its discretion to determine whether Herberger’s prior inconsistent statement met the requirements set forth in section 115—10.1 (see People v. Flores (1989), 128 Ill. 2d 66, 87-88; People v. Hastings (1987), 161 Ill. App. 3d 714, 719), it is clear that particular statute was never mentioned during the closing-argument colloquy between the trial judge and defense counsel concerning counsel’s position that the statement could be admitted substantively. The trial judge is presumed to know the law, however (People v. Cheung (1980), 83 Ill. App. 3d 1048, 1055), and, even if we were to consider whether defense counsel rendered ineffective assistance by failing to argue the issue based specifically on section 115—10.1, we would have to conclude defendant nonetheless received the effective assistance of counsel.

In light of our above conclusion that the prior inconsistent statement was not admissible as substantive evidence, the defendant has failed to show he was prejudiced by counsel’s performance under the Strickland test. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693-94, 104 S. Ct. 2052, 2064-65; People v. Steidl (1991), 142 Ill. 2d 204.) Under Strickland, a defendant seeking to establish a claim of ineffective assistance of counsel must prove both that his attorney “made errors so serious that [she] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and that it is reasonably probable that those errors so prejudiced the defendant as to deprive him of a fair trial. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) “A court deciding a claim of ineffective assistance of counsel may advance directly to the second part of the Strickland test, and if it finds that the defendant was not prejudiced by the allegedly incompetent conduct of his attorney, the court may rule on the claim without first finding that the attorney’s conduct constituted less than reasonably effective assistance.” People v. Pitsonbarger (1990), 142 Ill. 2d 353, 397.

In sum, we conclude the court did not err when it refused to consider Herberger’s prior inconsistent statement as substantive evidence.

The defendant next contends he was not proved guilty beyond a reasonable doubt of battery, arguing the identification evidence was conflicting, Diane Pietschman’s testimony was not credible and the court based its ruling on a finding of fact which was not supported by the evidence.

On review of the sufficiency of the evidence to support a conviction, the function of this court is not to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Waldron (1991), 208 Ill. App. 3d 234, 236.) Rather, in order to preserve the fact finder’s role as weigher of the evidence, the relevant question is whether, after reviewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Steidl (1991), 142 Ill. 2d 204, 226; Collins, 106 Ill. 2d at 261; Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

The defendant’s argument is that Diane Pietschman’s identification of him as her attacker was called into serious question by the contradictory evidence of witnesses Herberger and Sperry that they observed his white-shirted brother, not him in the red shirt, gripping a pickaxe with both hands like a baseball bat while standing in the doorway of the lounge. He points out the court resolved this seeming conflict by concluding, without evidentiary basis, that there were two different axes, one used by each of the Posedel brothers, and that it was error for the court to have reached that conclusion without any evidentiary basis.

We agree that a trier of fact may not make an affirmative finding that is unsupported by any evidence (see People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 86), but the record here does not support the defendant’s contention that the court’s conclusion was not based on any evidence. The record shows Diane Pietschman, Keith Herberger and Michael Sperry each described the axe held, respectively, by the red-shirted defendant and his white-shirted brother. The court’s reception of the oral testimony of these three witnesses was supplemented with its visual reception of those witnesses’ manual demonstrations performed in explanation of the appearance of the respective axes. Those demonstrations caused the court to conclude there were two different types of axes involved:

“THE COURT: The ones describing the pick ax, had their hands approximately two feet apart, did a circle with their fingers, and did a tubular out from each — from the center moving their hands outward, which is a pretty graphic description of a pick ax. Diane, I still don’t the—
MS. GROHS: Pietschman.
THE COURT: —Pietschman, testified to a two edged ax, she did a convex or—
MR. QUILTY: Depending on which angle you’re looking at.
THE COURT: Depends on what angle you’re looking at— semi-circular movement on each side with her hands, at a distance of approximately a foot or so, which was a very accurate description of a double headed ax.”

In response to defense counsel’s argument that she believed the witnesses were describing the same axe, the court stated:

“THE COURT: Well, just so the record is clear, their physical descriptions with their hands were not at all identical. Okay?
A pick ax with a narrow, in essence, although they didn’t say it, tubular projection on each side, to a point, as opposed to double headed ax, is two different kinds of instrumentalities that I think you can take [notice of] everyday experience of in these kinds of items. And their descriptions were just totally different on each one of them.”

This type of visual demonstration in explanation of testimony amounts to a form of demonstrative evidence which “can convey a relevant firsthand sense impression to the trier of fact, as opposed to those which serve merely to report the secondhand sense impression of others.” (McCormick, Evidence §212, at 524 (2d ed. 1972).) The determination of the weight to be given to the witnesses’ testimony, their credibility, and the reasonable inferences to be drawn from the evidence are the responsibility of the fact finder (People v. Steidl (1991), 142 Ill. 2d 204, 226) as is the resolution of conflicts in the evidence (People v. Lippert (1984), 125 Ill. App. 3d 489).

The court’s resolution of the seeming conflict in the evidence, which defendant characterizes as a “dilemma,” was properly based on the evidence it heard and saw at trial. Evidence of Herberger’s and Sperry’s observance of Dennis Posedel wearing a white shirt and wielding a pickaxe was not specifically placed in a time frame which would negate the reliability of Diane Pietschman’s positive identification of the defendant as her assailant both in court and in the photographic lineup after the incident occurred. Herberger stated only that he observed Dennis Posedel with the pickaxe at a time which was before he knew Diane Pietschman had been hurt. As such, Herberger’s and Sperry’s testimony does not foreclose the possibility that the defendant battered Diane Pietschman prior to or subsequent to his brother being seen with a pickaxe. Diane Pietschman had ample opportunity to view the defendant while he was in the bar, prior to the attack upon her, during the attack when she saw him in the doorway under “well lit” conditions and when she turned and saw him chasing her after he threatened to kill her.

The testimony of a single witness can be sufficient to support a conviction if the witness observed the accused under conditions permitting a positive identification. (People v. McNutt (1986), 146 Ill. App. 3d 357; People v. Chew (1987), 160 Ill. App. 3d 1082.) We conclude the defendant was proved guilty beyond a reasonable doubt of battery.

Lastly, the defendant claims his four-year sentence was the result of an abuse of the court’s discretion and should be reduced to the minimum sentence of two years for a Class 3 felony. He points out the court was willing to go along with a plea agreement that did not include a prison sentence, but then, after he exercised his right to trial, it considered imposing an extended prison term. Defendant claims the court also took into consideration inappropriate factors in fashioning the four-year sentence. Specifically, it considered the nature of the weapon used where that factor was already a necessary element of the offense charged, and it considered that his conduct was brutal and heinous.

Initially, we reject the State’s implication that this issue may be moot due to the passage of time. (See In re D.G. (1988), 176 Ill. App. 3d 658 (sole issue of whether the 30-day jail term imposed as part of minor’s dispositional order was appropriate found moot where minor had already served the period of detention).) When the only relief sought is to vacate a sentence, the question of the validity of its imposition becomes moot when the sentence has been served. (People v. S.L.C. (1986), 115 Ill. 2d 33, 39.) Defendant here has sought more than just relief from his sentence. Further, four years have not elapsed since sentence was imposed on December 30, 1988, and there is no evidence the defendant has received the good-time credit provided for in section 3—6—3 of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1003—6—3(a)(2)). Accordingly, we proceed to address the merits of the issue.

It is well settled that a trial judge’s sentencing decisions are entitled to great deference and weight (People v. Perruquet (1977), 68 Ill. 2d 149, 154) since he is in a better position than a reviewing court to fashion an appropriate penalty after firsthand observation of the defendant and consideration of such factors as the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age (People v. Streit (1991), 142 Ill. 2d 13, 19; Perruquet, 68 Ill. 2d at 154) along with his consideration of other factors such as the defendant’s history, rehabilitative potential, the seriousness of the offense, the need to protect society and the need for deterrence (People v. Goodwin (1991), 208 Ill. App. 3d 829, 831). Accordingly, even though a reviewing court may have weighed the sentencing factors differently, its power to alter or reduce a sentence pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) is limited to those cases in which a trial court has abused its discretion. Streit, 142 Ill. 2d at 19; Perruquet, 68 Ill. 2d at 154; People v. Jenkins (1991), 209 Ill. App. 3d 249, 263.

We find the trial court did not abuse its discretion in sentencing the defendant to a four-year term of imprisonment. Before the defendant’s jury trial commenced, the details of the abandoned plea negotiations were spread of record. In light of the potential evidentiary problems the State suggested it might encounter in prosecuting the cause, the court indicated it would accept a straight plea of guilty to the felony with no sentence to the Department of Corrections, despite the defendant’s prior felony conviction, or, alternatively, it would accept a plea involving time in the Lake County jail although its preference would be for the felony conviction. It also indicated that with the defendant’s prior conviction, and considering the nature of the instrumentality allegedly used, an extended term would be available if there was a trial and conviction.

At sentencing, the court stated that, although it had expected that perhaps the State might not have sufficient evidence, it was clear to it after having heard the evidence that the defendant did have a axe and that he committed the offense charged. Consequently, in light of the violent nature of the crime and the defendant’s prior conviction, and despite the “tremendous discount” the defendant was offered to plead guilty, the court indicated the defendant was facing the possibility of a 10-year term. It felt the defendant had alcohol and attitude problems, that his remorse was belated, that “the odds” and the structure of intensive probation were not on his side and that the defendant was “going to be back in here and he’s going to be doing 10 years in the joint. I’m not sure what is not only best for the society but best for him at this point.”

When the trial judge asked the defendant if he understood the point he was trying to make, the defendant’s response showed he did not. Accordingly, the court stated:

“THE COURT: I’ll put it in real simple language, all right? You have been to the joint before. You’ve got significant prior contacts with the justice system. I have found you guilty of a violent act with a weapon that but for luck, somebody could have been dead. I can — there’s no court in the world that would do anything but affirm me if I decided you ought to get 10 years for that. On the other hand, the reason you’re facing that
10 years is because you were stupid in that you didn’t accept a sweetheart deal offered to you by the State which involved not going to the penitentiary. Do you remember that?
THE DEFENDANT: Yes, I do.
THE COURT: And while I am justified in sending you to the penitentiary and I’m not bound or held to anything about that agreement, there’s just a little part of me that feels that it sort of would be giving you 10 years for stupidity rather than 10 years for doing this because you had a chance at no penitentiary for it, and what I’m basically saying to your lawyer is my problem is because of that. I would have a tendency to give you less than the 10, something 5 or below and have it done with even though I ought to give you 10 based on your record; but if I give you — if I gave you intensive [probation] and you do six months on that and you come back for any — spitting on the sidewalk, I’d send you for 10.”

A sentence will be set aside where the sentencing judge’s remarks make it evident that the sentence being imposed is due, at least in part, to the fact that the defendant did not plead guilty and, instead, exercised his constitutional right to trial. (People v. Ward (1986), 113 Ill. 2d 516, 526; People v. Moriarity (1962), 25 Ill. 2d 565, 567.) However, the mere imposition of a sentence which is greater than that discussed at a pretrial conference does not support the inference that the heavier sentence was imposed as a punishment for demanding trial (People v. Beacham (1980), 87 Ill. App. 3d 457, 471; People v. Busch (1973), 15 Ill. App. 3d 905, 907); such a claim must clearly be established by the evidence. Busch, 15 Ill. App. 3d at 907.

Rather than punishing the defendant for going to trial, it is clear from the court’s remarks that it was trying to construct a reasoned and appropriate sentence from the range of the minimum and maximum dispositions available to it: intensive probation on the one hand and an extended term on the other. The court’s remarks show it believed that if it gave the defendant a term of intensive probation and he violated its terms, he would likely be sent to prison for 10 years. In the alternative, some prison terms less than 10 years in length perhaps would ensure the defendant would not have to face imposition of a maximum term. With 20-20 hindsight, the defendant well might agree that he was “stupid” to forego the “sweetheart deal” offered before trial. Based on this record, however, we find his four-year sentence to the Department of Corrections was not in the least meant by the court to be a punishment of him for exercising his right to a jury trial. Rather, it was a sentence which reflected the balance struck by the court between the seriousness of the crime and the defendant’s rehabilitative potential.

We find meritless the defendant’s further contentions that the court was wrong to consider the possibility of an extended term based on the nature of the weapon used because that factor was already an aggravating factor for purposes of the charge and in finding that his “brutal and heinous” conduct supported an enhancement of the sentence.

In the first place, the four-year sentence imposed is not an extended term. An extended term for a Class 3 felony would be not less than 5 and not more than 10 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(5).) Secondly, the defendant concedes that his prior criminal record alone qualified him for an extended term. (See Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—2(b), 1005—5—3.2(b); People v. Thomas (1988), 168 Ill. App. 3d 113, 118.) Consequently, the court properly could consider a 10-year term as the high end of the sentencing range it was considering.

Third, as to the nature of the weapon used, the general rule is that “a factor implicit in the offense for which the defendant has been convicted cannot be used as an aggravating factor in sentencing for that offense, absent a clear legislative intent to accomplish that result.” (People v. Ferguson (1989), 132 Ill. 2d 86, 97.) Although judgments of conviction were entered by the court here on both counts of aggravated battery, only one four-year sentence was entered, and we have above vacated the defendant’s conviction of aggravated battery based on the use of a deadly weapon. The remaining conviction of aggravated battery is based upon great bodily harm, and the court in its discretion could properly consider that the defendant’s use of the axe threatened even more serious harm than the harm actually inflicted. Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(1).

Fourth, the court’s consideration of the heinous nature of the defendant’s conduct was not improper. As noted above, the sentencé imposed was not an extended term and, thus, the defendant’s reliance on People v. Lucas (1989), 132 Ill. 2d 399, 444-47, in arguing his conduct was not brutal and heinous is misplaced. Further, this court has already determined that a sentencing court’s consideration of brutal and heinous conduct is not disallowed simply because the sentence it is fashioning is a non extended term. See People v. Jorgensen (1989), 182 Ill. App. 3d 335, 342-43 (agreeing with People v. Butts (1985), 135 Ill. App. 3d 132, 135, in that court’s express rejection of the conclusion in People v. Killen (1982), 106 Ill. App. 3d 65, that section 5—5—3.2(b)(2) factors may be considered only to impose an extended term); accord People v. Compton (1990), 193 Ill. App. 3d 896, 901.

In sum, we find the four-year sentence imposed was the result of the exercise of sound judicial discretion and no alteration is warranted.

The judgment of the circuit court of Lake County finding the defendant guilty of the offense of aggravated battery by use of a deadly weapon is vacated; its judgment and sentence finding him guilty of aggravated battery causing great bodily harm is affirmed.

Judgment vacated in part and affirmed in part.

INGLIS and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    STEVEN KMOCH, Plaintiff-Appellee, v. MICHAEL KLEIN et al., Defendants-Appellants.
    Second District
    No. 2—90—1429
    Opinion filed May 28, 1991.

      Michael T. Byrne, of Clarendon Hills, for appellants.
    H. Kent Heller & Associates, P.C., of Naperville, and Mark Grotefeld, of Chicago (H. Kent Heller, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

The present appeal arises out of plaintiff’s tort action against defendants, Michael Klein and Allendale, for sexual assault. Defendant Klein appeals from two interlocutory orders of the trial court denying defendant Klein’s motions to quash the deposition subpoenas of Dr. Ronald B. Baron, a psychiatrist, and Mr. Ross Boone, a licensed clinical social worker. We dismiss the appeal for lack of jurisdiction.

The following facts, though somewhat sketchy due to the incompleteness of the record, are relevant to the issues before us. In February 1988, plaintiff was a live-in student at defendant Allendale, a school for disabled and handicapped children. During the same period of time, defendant Klein was employed by defendant Allendale as a child-care worker. Count I of plaintiff’s two-count complaint alleges that defendant Klein willfully and knowingly sexually assaulted plaintiff in February 1988. Count II alleges that defendant Allendale, knowing that defendant Klein suffered from sexual confusion, failed to counsel or control defendant Klein regarding his sexual confusion and allowed him to be alone with plaintiff under circumstances which would permit sexual assaults.

After defendants filed their answers, plaintiff filed a motion to cause the clerk of the court to issue a subpoena for a discovery deposition to Dr. Baron and caused a subpoena to be served upon Mr. Boone. On November 8, 1990, defendant Klein filed motions to quash the deposition subpoenas of Dr. Baron and Mr. Boone, pursuant to the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 801 et seq.). On November 26, 1990, the trial court, based on the Illinois Supreme Court’s decision in Novak v. Rathnam (1985), 106 Ill. 2d 478, denied defendant Klein’s motion to quash the deposition subpoenas. The trial court also ordered a stay of the taking of the depositions, “pending an interlocutory appeal to be taken by defendant Klein pursuant to Chapter 91½, section 810(b) of the Ill. Rev. Statutes.” Defendant Klein filed a notice of interlocutory appeal on December 17, 1990.

On January 7, 1991, plaintiff filed a motion to dismiss the appeal. The gravamen of plaintiff’s contention is that this court is without jurisdiction to consider the appeal. On January 23, 1991, we ordered that this motion and defendant Klein’s response be taken along with the other issues presented on appeal.

Defendant Klein purports to raise the following issues on appeal: (1) whether the trial court’s orders denying the motions to quash improperly deprived defendant Klein of the protections afforded by the Mental Health and Developmental Disabilities Confidentiality Act (Act); (2) whether disclosure of confidential information by Dr. Baron was improper under the Act; (3) whether improper disclosure of confidential doctor-patient information by a mental health care professional operates as a waiver of the patient’s right to invoke the protections of the Act; (4) whether the supreme court’s holding in Novak v. Rathnam is applicable to the facts of the instant case; and (5) whether the trial court should have conducted an in camera inspection prior to any order requiring disclosure of confidential information. We note that consideration of these issues is rendered difficult because, as plaintiff correctly points out, defendant Klein’s brief is without citation to the record and addresses matters which were not made part of the record on appeal. The difficulty lies in the fact that, prior to the instant civil action, but arising out of the same set of facts, defendant Klein was criminally charged, in case No. 88—CM—1063, with battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—3(a)(2)). It was in relation to that criminal proceeding that defendant Klein was treated by Dr. Baron and Mr. Boone. It was also to the judge in that proceeding that the allegedly improper and nonconsensual psychiatric disclosures were made. Finally, since the trial court in the instant case based its ruling on the Novak case, the court was apparently holding that defendant Klein had waived any privilege with respect to the confidential communications because some of the information had been disclosed to the court in the prior, related criminal proceeding. As stated, this is unclear because these facts are adduced not from the record on appeal, but rather from defendant Klein’s brief.

We need not reach the substantive merits of this case, however, because we hold that this court does not have jurisdiction to consider defendant Klein’s appeal of the two orders denying the motions to quash the deposition subpoenas of Dr. Baron and Mr. Boone. Defendant Klein’s amended notice of appeal states that “[a]n [interlocutory [a]p-peal is taken by right pursuant to the Illinois Revised Statutes, Chapter 91½, Section 810(b) and Section 307 of the Supreme Court Rules.” In his motion to dismiss the appeal, plaintiff first contends that the orders appealed from are not within the ambit of those interlocutory orders appealable as of right under Supreme Court Rule 307 (134 Ill. 2d R. 307). Relying on People v. Phipps (1979), 79 Ill. App. 3d 532, rev’d on other grounds (1980), 83 Ill 2d 87, plaintiff also contends that, to the extent that section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 810(b)) attempts to make a final order out of an interlocutory order, the statute is unconstitutional. Finally, plaintiff contends that defendant Klein failed to timely serve upon plaintiff a copy of the notice of appeal and docketing statement. Thus, plaintiff maintains that this court should dismiss defendant Klein’s appeal.

Defendant Klein responds that, notwithstanding the Phipps case, the Blinois legislature did not overstep its bounds in enacting section 10(b) of the Act. Rather, defendant Klein argues that “[t]he legislature merely clarified that an [sic] court order falling within the purview of the Act would provide a basis for interlocutory appeal, a remedy which naturally calls to mind Supreme Court Rule 307.” Defendant Klein argues further that, according to In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, this court has jurisdiction pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)), since the trial court orders “enjoined defendant Klein from asserting his right to confidentiality.”

We first address plaintiff's argument that he was not timely served with notice of appeal or a docketing statement. In this respect, we note that plaintiff has filed a responsive brief and has failed to demonstrate how defendant Klein’s failure to serve notice has prejudiced him. Therefore, plaintiff is not entitled to dismissal of the appeal on that basis. Lachona v. Industrial Comm'n (1981), 87 Ill. 2d 208, 212.

We next address whether the trial court’s orders are appealable under section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 810(b)). The last sentence of that section states:

“Any order to disclose or to not disclose shall be considered a final order for purposes of appeal and shall be subject to interlocutory appeal.”

We agree with plaintiff that there is an apparent ambiguity in the language of the above provision. While on one hand the provision states that such orders are to be considered final for purposes of appeal, on the other it states that they are subject to interlocutory appeal. Nevertheless, for the reasons that follow we find that the orders denying the motions to quash are neither final for purposes of appeal nor subject to interlocutory appeal.

Initially, it is clear to us in examining the nature of disclosure orders as set out in the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 91½, par. 801 et seq.) that such orders possess none of the typical characteristics of finality and, therefore, do not result in final judgments for purposes of appeal. As this court stated in Vijuk Bindery Equipment, Inc. v. Transconex, Inc. (1988), 171 Ill. App. 3d 408:

“A judgment or order is final and appealable if it terminates the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court need only execute the judgment. [Citation.] Even though an order need not dispose of all the issues presented by the pleadings, it must be final in that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.” Vijuk, 171 Ill. App. 3d at 409-10.

We believe the Illinois Supreme Court case People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, to be especially helpful in this regard. In Silverstein, one of the defendants subpoenaed a newspaper reporter for his deposition and for the production of certain documents. The reporter filed a motion to quash, contending that the enforcement of the subpoena would violate the Reporter’s Privilege Act (Ill. Rev. Stat. 1979, ch. 51, par. 111 et seq.). After a hearing, the trial court in that case denied the motion to quash on the ground that the reporter had waived his right to assert the privilege. On appeal, the appellate court found that the order denying the motion to quash was final and appealable under Supreme Court Rule 301. (People ex rel. Scott v. Silverstein (1980), 89 Ill. App. 3d 1039, 1042.) The Illinois Supreme Court reversed the appellate court and held that the order was not a final and appealable order under Supreme Court Rule 301. Silverstein, 87 Ill. 2d at 171.

The Silverstein court analyzed the appealability issue as follows: “The 1970 Illinois Constitution vests in this court the authority to make rules governing appeals. (Ill. Const. 1970, art. VI, §§6, 16.) Also, section 6 of article VI provides that appeals from final judgments of the circuit court are a matter of right to the appellate court and that the supreme court may provide by rule for appeals to the appellate court from other than final judgments of the circuit courts. (Ill. Const. 1970, art. VI, §6.) Accordingly, Supreme Court Rule 301 (73 Ill. 2d R. 301) provides that ‘[ejvery final judgment of a circuit court in a civil case is appealable as of right.’ *** Similarly, Supreme Court Rule 304 (73 Ill. 2d R. 304) provides for appeals from final judgments as to fewer than all the ■ parties or claims. *** Pursuant to the constitutional authority to provide for appeals from other than final judgments, Supreme Court Rules 306, 307, and 308 (73 Ill. 2d Rules 306, 307, 308) provide for appeals from certain specified interlocutory orders of the court. Discovery orders are not made appealable under the provisions of these rules. *** (Emphasis omitted and added.)
*** Preliminary orders in a pending case are not appealable because they are reviewable on appeal from the final order. [Citation.] However, an order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders. [Citations.] The imposition of a sanction for contempt is final and appealable because, although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises. [Citations.] It is the end of the proceeding begun against the witness. There is nothing left to be done but enforce the judgment.” Silverstein, 87 Ill. 2d at 171-72.

As in Silverstein, the orders in the instant case, as they presently stand, are not final. Rather, they are interlocutory in nature, made as preliminary discovery orders in a pending suit. Under Silverstein, such orders are not appealable because they are reviewable on appeal from the final order. At this point in the proceedings, Dr. Baron and Mr. Boone have the privilege “either to obey the orderfs], or stand in defiance of the power of the court.” (Silverstein, 87 Ill. 2d at 173-74.) “Where an unappealable interlocutory order results in a judgment of contempt ***, such a judgment is a final and appealable judgment and presents to the court for review the propriety of the order of the court claimed to have been violated.” Silverstein, 87 Ill. 2d at 174.

We next consider whether our supreme court has provided for interlocutory appeal from an order denying a motion to quash deposition subpoenas. The only pertinent supreme court rule which might be applicable in this case, and the rule that defendant Klein argues does in fact apply, states:

“An appeal may be taken to the Appellate Court from an interlocutory order of court
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” 134 Ill. 2d R. 307(a)(1).

Defendant Klein argues that the applicability of Rule 307 to disclosure disputes under the Mental Health and Developmental Disabilities Confidentiality Act was specifically recognized in In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712. Lombaer also involved an appeal from orders directing the taking of a psychiatrist’s deposition. On appeal, petitioner argued, inter alia, that the trial court erred in ordering the discovery deposition of her psychiatrist. Respondent argued that the appeal was improperly filed pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)). The Appellate Court, First District, disagreed, stating only that it had jurisdiction “to review the orders directing the doctor’s deposition and the production of the medical records, which, in effect, enjoin Kimberly and her physician from asserting their privilege.” (Lombaer, 200 Ill. App. 3d at 721.) Defendant Klein argues that, as in Lombaer, the trial court in the present case in effect enjoined him from asserting his rights to confidentiality, thereby bringing the case within the ambit of Rule 307 (134 Ill. 2d R. 307). We disagree.

To the extent that Lombaer stands for the proposition that discovery orders of this type are subject to interlocutory appeal, we decline to follow that decision. Rather, we believe that People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, again delineates the proper course. To reiterate, the supreme court in Silverstein stated that “[pjursuant to the constitutional authority to provide for appeals from other than final judgments, Supreme Court Rules 306, 307, and 308 [citation] provide for appeals from certain specified interlocutory orders of the court. Discovery orders are not made appealable under the provisions of these rules.” (Emphasis in original.) (Silverstein, 87 Ill. 2 at 171.) We derive further support for our position from the practice notes to Rule 307, which state:

“Discovery orders are not reviewable under this rule, People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 429 N.E.2d 483, 57 Ill. Dec. 585 (1981), even though they may have the qualities of an injunction. The same is true of orders impounding court records. See JFS v. ABMJ, 120 Ill. App. 3d 261, 458 N.E.2d 76, 75 Ill. Dec. 908 (1st Dist. 1983), which goes on to say that the non-injunctive characterization applied in such cases arises from the fact that orders of those types were not historically the sole province of courts of equity but were manifestations of the inherent power of all courts to control their own processes.” Ill. Ann. Stat., ch. 110A, par. 307, Historical & Practice Notes, at 263 (Smith-Hurd 1985).

Finally, the question becomes whether, given the nonfinal nature of the orders denying the motions to quash at the time of their imposition, and the fact that the orders are not otherwise subject to interlocutory appeal, the legislature can enact a provision expressly effectuating the appealability of such orders. As stated, the last sentence of section 10(b) of the Mental Health and Developmental Disabilities Confidentiality Act states:

“Any order to disclose or to not disclose shall be considered a final order for purposes of appeal and shall be subject to interlocutory appeal.” Ill. Rev. Stat. 1989, ch. 91½, par. 810(b).

The 1970 Illinois Constitution vests in the supreme court the authority to make rules governing appeals. (Ill. Const. 1970, art. VI, §§6, 16.) Thus, under article VI, section 6, the question of whether judgments or orders are appealable depends upon whether they are either final within the meaning of that section or otherwise made appealable by supreme court rule. (In re Marriage of Lentz (1979), 73 Ill. App. 3d 93, 96, aff'd (1980), 79 Ill. 2d 400.) Any legislative enactment in conflict with the supreme court rules governing appeals would be invalid. Lentz, 79 Ill. 2d at 405.

Relying on People v. Phipps (1979), 79 Ill. App. 3d 532, rev’d on other grounds (1980), 83 Ill. 2d 87, plaintiff argues that the above-referenced provision is unconstitutional. In Phipps, the defendant had filed a motion for discovery which asserted that seven potential witnesses for the State were residents of the Lincoln Developmental Center, that the State maintained personal files on these individuals, and that the files contained medical evaluations. The trial court granted defendant’s request that the State furnish him with those files. The State asked the court to reconsider its discovery order, asserting that the Department of Mental Health and Developmental Disabilities had informed the prosecution that the files were confidential under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat., 1978 Supp., ch. 91½, par. 801 et seq.). The trial court entered an order stating that any witnesses who invoked the privilege would not be permitted to testify and that those who complied with the discovery order could testify. The State appealed from the. order, and the defendant, while addressing the merits, also questioned the appealability of the order.

On appeal, the Appellate Court, Fourth District, held that the order was not appealable as one “suppressing evidence” under Supreme Court Rule 604(a) (58 Ill. 2d R. 604(a)). The appellate court also held that, “to the extent that section 10(b) [of the Mental Health and Developmental Disabilities Confidentiality Act] attempts to provide for appeals from less than final judgment, it is an unconstitutional infringement by the legislature upon the rulemaking power of the supreme court and is therefore void.” (Phipps, 79 Ill. App. 3d at 537.) The Illinois Supreme Court reversed, holding that the trial court’s order was in fact appealable as one “suppressing evidence” under Rule 604(a) (58 Ill. 2d R. 604(a)). (Phipps, 83 Ill. 2d at 91.) The supreme court did not address the validity of section 10(b) of the Act.

As stated previously, defendant Klein argues that the legislature did not overstep its bounds, but “merely clarified that an [sic] court order falling within the purview of the Act would provide a basis for interlocutory appeal, a remedy which naturally calls to mind Supreme Court Rule 307.” We have already concluded that the discovery orders in this case are not subject to interlocutory appeal pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307). We also disagree with defendant Klein’s innocent interpretation of the appealability provision of section 10(b). Rather, we believe that but one interpretation is possible. That interpretation is that the legislature has attempted to infringe upon the constitutional power of the Hlinois Supreme Court to regulate and provide for appellate jurisdiction. Accordingly, we hold that section 10(b) of the Act (Ill. Rev. Stat. 1989, ch. 91½, par. 810(b)), to the extent that that provision infringes on the appellate rulemaking power of the Hlinois Supreme Court, is void.

For the foregoing reasons, we conclude that the November 26, 1990, orders denying defendant Klein’s motion to quash the deposition subpoenas of Dr. Baron and Mr. Boone cannot be appealable either as a final judgment, an interlocutory order, or pursuant to legislative action. The appeal is therefore dismissed.

Appeal dismissed.

NICKELS and WOODWARD, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY D. PENNACCHIO, Defendant-Appellant.
    Second District
    No. 2—90—0419
    Opinion filed May 30, 1991.

      Douglas P. Trent and Connie J. Butcher, both of Law Offices of Douglas P. Trent, of Carol Stream, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Anthony Pennacchio, appeals from the imposition of six months’ periodic imprisonment after admitting to a violation of his court supervision. The defendant argues that he was not properly admonished pursuant to Supreme Court Rule 402(a) before admitting to the violation (134 Ill. 2d R. 402(a)). He claims that, because he was not properly admonished, the waiver of his right to a hearing on the State’s petition to revoke supervision was not a knowing, intelligent or voluntary waiver. In addition, the defendant claims his admission was not voluntary because it was based on an unfulfilled promise. The defendant also asserts his sentence is excessive. We agree in part.

The defendant was convicted of battery on June 1, 1988. He was sentenced to two years’ court supervision to terminate June 1, 1990. On December 3, 1988, the defendant was arrested for reckless homicide in Iroquois County. On March 1, 1989, the Du Page County State’s Attorney’s office filed a petition to revoke the defendant’s court supervision.

The defendant reached a plea-bargain agreement with the Iroquois County State’s Attorney’s office on the reckless homicide charge. Under the agreement, the defendant would be sentenced to: (1) 30 months’ probation; (2) 50 hours of community service work; and (3) a fine of $500. Before the defendant entered his plea to the reckless homicide charge, the defendant’s attorney met with the Du Page County State’s Attorney’s office on the petition to revoke supervision. An agreement was reached whereby the Du Page County State’s Attorney’s office would agree to an unsatisfactory termination of court supervision if the defendant would admit to the violation of his supervision and also plead guilty to the reckless homicide pursuant to the plea agreement reached with the Iroquois County State’s Attorney’s office.

The defendant pleaded guilty to the reckless homicide charge in Iroquois County on December 15, 1989. He was sentenced pursuant to the plea agreement. On January 8, 1990, the defendant appeared in the circuit court of Du Page County on the petition to revoke his court supervision.

The assistant State’s Attorney did not inform the court of the full terms of the plea agreement reached between the parties. The trial judge stated that he was not bound by the agreement reached between the parties. He then asked the defendant if he intended to admit the allegations contained in the petition to revoke his court supervision. When the defendant responded in the affirmative, the court asked him if he understood that by admitting the violation of the terms of the court supervision he waived his right to a hearing and that all that remained was for the court to decide the penalty to be imposed. Again, the defendant responded that he understood. The court then asked the defendant if he was freely and voluntarily admitting that he violated the terms of his court supervision. The defendant answered in the affirmative.

The judge sentenced the defendant to six months’ periodic imprisonment. The defendant filed motions to vacate and to reconsider the sentence. After a hearing on the matter, the court denied both motions. Defendant timely appeals.

Defendant’s first argument on appeal is that he was not properly admonished pursuant to Supreme Court Rule 402 prior to admitting to the petition to revoke his court supervision. Defendant asserts the trial court was required to explain the nature of the charge against the defendant, the minimum and maximum sentence prescribed by law, that he had a right to plead not guilty, and that if he pleaded guilty he would waive the right to a trial by jury and the right to confront the witnesses against him pursuant to Rule 402.

Supreme Court Rule 402 governs pleas of guilty. Although we were unable to find any cases directly on point dealing with the applicability of Rule 402 to supervision revocation proceedings, we find the cases dealing with the rule’s applicability to probation revocation hearings persuasive.

The Unified Code of Corrections provides that a court may, upon a plea of guilty or a finding of guilt, defer the imposition of a sentence and enter an order for supervision. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—1(c).) Conditions are imposed by the court for the term of supervision. Upon the successful completion of the term, an order dismissing the charges against the defendant may be entered. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—1—21.) If the conditions are not fulfilled, the court has the option of continuing the supervision, modifying the supervision, or revoking the supervision and resentencing the defendant pursuant to the original charge. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—4(e) through (h).) A proceeding to revoke court supervision is similar to a probation revocation proceeding in that it is not a criminal adjudication. (People v. Butler (1985), 137 Ill. App. 3d 704, 712.) The defendant has already been found guilty of the crime at an early stage in the proceedings.

Rule 402 was formulated to secure proper entry of guilty pleas. (People v. Beard (1974), 59 Ill. 2d 220, 226; People v. Krantz (1974), 58 Ill. 2d 187, 194-95.) In People v. Beard (59 Ill. 2d 220), our supreme court held the provisions of Rule 402 are not strictly applicable to probation revocation proceedings. The court stated that due process does not require all Rule 402 admonitions be given in a probation revocation proceeding because the admission of a probation violation is significantly different in nature and effect from what is involved in a plea of guilty to an original charge. People v. Beard, 59 Ill. 2d at 226-27; see also People v. Cox (1990), 197 Ill. App. 3d 239, 243.

We find the same differences in nature and effect are present when the admission pertains to a violation of court supervision. In a supervision revocation proceeding, the defendant’s guilt has been determined in a prior proceeding. He is not pleading guilty to the offense with which he is charged. Although the defendant ultimately may be incarcerated as a result of the revocation of court supervision, there is a qualitative difference between a criminal conviction and the revocation of supervision. (See People v. Beard, 59 Ill. 2d at 226.) Accordingly, we hold the provisions of Rule 402 are not strictly applicable to supervision revocation proceedings.

However, despite the qualitative difference between a criminal conviction and the revocation of supervision, basic due process rights still must be accorded. The United States Supreme Court has set forth the minimum due process rights to be accorded to a probationer in probation revocation proceedings in Gagnon v. Scarpelli (1973), 411 U.S. 778, 789, 36 L. Ed. 2d 656, 665-66, 93 S. Ct. 1756, 1763. Under Gagnon, a probationer is afforded only “minimum” due process rights. The court recognized that a probationer has already been convicted of the crime resulting in probation and is entitled to fewer procedural safeguards than one who has not been convicted at all. Gagnon, 411 U.S. at 789, 36 L. Ed. 2d at 665-66, 93 S. Ct. at 1763; People v. DeWitt (1979), 78 Ill. 2d 82, 85.

In DeWitt, the court held that due process entitles a probationer

“to written notice of the alleged violation, to disclosure of the evidence against him, to be heard in person and to present testimonial and documentary evidence, to confront and cross-examine adverse witnesses, to be judged by a neutral and detached hearing body, to receive a written statement by the fact finders stating the evidence relied on and the reason for the revocation, and, in some instances, to receive assistance of counsel.” DeWitt, 78 Ill. 2d at 85, citing Gagnon v. Scarpelli, 411 U.S. at 782, 786, 788, 36 L. Ed. 2d at 662, 664-65, 93 S. Ct. at 1760-63.

Our supreme court has noted that Illinois statutes have similar guarantees, referring to section 5—6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4). (People v. DeWitt, 78 Ill. 2d at 85; People v. Hoyt (1984), 129 Ill. App. 3d 331, 336-37.) That section concerns the violation, modification or revocation of probation, conditional discharge or supervision. Because the nature of supervision is so similar to that of probation, we hold that only minimal due process is warranted in supervision revocation proceedings as well.

Our supreme court has held that due process requires that an admission to the violation of probation must be made voluntarily. (People v. Pier (1972), 51 Ill. 2d 96; People v. Beard, 59 Ill. 2d 220; see also People v. Cox, 197 Ill. App. 3d 239.) We find that due process requires that an admission to the violation of supervision must be voluntarily made as well.

The defendant in the present case argues his admission was involuntary based on two grounds. First, defendant claims his admission was involuntary because he did not receive Rule 402 admonishments before admitting to the violation. As stated previously, Rule 402 governs guilty pleas and is not strictly applicable to admissions of supervision violations.

The trial judge stated on the record before the defendant made the admission that he was not bound by the plea agreement. He explained to the defendant that by admitting to the violation the defendant waived his right to a hearing and that the only matter remaining would be for the court to determine the penalty. The trial judge then asked the defendant if he understood. The defendant answered in the affirmative. The judge then asked the defendant if he was freely and voluntarily admitting that he violated his supervision by committing the offense of reckless homicide. Again, the defendant answered in the affirmative. The judge then revoked the defendant’s supervision and sentenced him to six months’ periodic imprisonment. The defendant was represented by counsel at this proceeding.

The defendant cites People v. Collins (1981), 100 Ill. App. 3d 611, in support of his argument that the trial judge failed to warn the defendant that if he persisted in his plea, the final disposition may be different. Collins holds a defendant must be given the opportunity to affirm or withdraw his guilty plea before the court indicates the sentence to be imposed pursuant to Rule 402(d)(3). (Collins, 100 Ill. App. 3d 611.) The defendant overlooks two important points. First, Collins involved a plea of guilty to a criminal charge, not an admission to a violation of supervision. As stated earlier, our supreme court has held that a plea of guilty to a criminal charge is not the same as an admission to a violation of probation. (People v. Beard, 59 Ill. 2d 220.) We have extended that doctrine to include admissions to violations of court supervision. In addition, the trial judge informed the defendant that he was not bound by the plea agreement. Due process does not require the trial judge to give the defendant a Rule 402(d)(3) admonishment before accepting his admission. We conclude the trial court’s actions were proper.

Second, the defendant contends his admission was involuntary because it was based on an unfulfilled promise. We agree. An admission to a probation violation must be voluntarily made. In People v. Pier (51 Ill. 2d at 99), our supreme court has held that, when an admission rests in any significant way upon a promise or agreement of a prosecutor so the same can be said to be part of the inducement or consideration, the promise must be fulfilled. An admission made in reliance on an unfulfilled promise is not voluntarily made by the defendant. Pier, 51 Ill. 2d at 99; People v. Beard, 59 Ill. 2d at 225; People v. Cox, 197 Ill. App. 3d at 242-43.

In Pier, the trial judge did not ask for a recommendation from the State’s Attorney, and the State’s Attorney did not make the recommendation that he told the defendant’s attorney he would make. (Pier, 51 Ill. 2d at 97.) In the present case, not only did the State’s Attorney fail to inform the judge of the entire plea agreement, he indicated to the court that he was of the opinion that a more severe penalty was in order. The record reveals the trial judge interrupted the State’s Attorney as he was presenting the agreement. The agreement was as follows. The agreement called for the defendant to plead guilty to the reckless homicide charge in Iroquois County in exchange for a sentence consisting of: (1) 30 months’ probation; (2) 50 hours of community service work; and (3) a fine of $500. In addition, the defendant was to admit to violating his court supervision, and, in exchange, the Du Page State’s Attorney’s office would recommend an unsatisfactory termination of the supervision. The defendant fulfilled both of his obligations under the agreement. He pleaded guilty to the reckless homicide charge and admitted to violating the terms of his supervision.

The judge, however, was informed only that the defendant’s supervision would be revoked (not unsatisfactorily terminated) in exchange for his admission to the violation. No mention was made of the portion of the agreement requiring the defendant to plead guilty to the reckless homicide in Iroquois County or the fact that defendant had already done so. The discussion was as follows:

“MR. SOLD AT [assistant State’s Attorney]: Phil Nathe, formerly with our office, entered into plea negotiations with Mr. Trent. The agreement would be, in exchange for the defendant’s admission to the PTR, the defendant’s probation [sic] would be revoked and—
THE COURT: And then what? That’s it?
MR. SOLD AT: That’s it, sir.
* * *
THE COURT: Okay. Based on that, we find there to be a violation of your court supervision; your court supervision is revoked. What do you say about that?
MS. RYAN [a probation officer]: I believe there should be some penalty, your honor.
THE COURT: No question about it. That’s ludicrous. What do we do, reward people for reckless homicide?
MR. SOLD AT: I couldn’t agree more, Judge.”

The assistant State’s Attorney made no attempt to inform the court of the agreement in its entirety. More importantly, he urged the trial court to impose a more severe penalty based on the fact that the defendant had committed a reckless homicide. It appears that both the court and the State’s Attorney’s office lost sight of the fact that the defendant had already been sentenced for the charge of reckless homicide in Iroquois County, and that the only issue before the court was the proper penalty to be imposed for violating the terms of his court supervision. Clearly, the assistant State’s Attorney did not fulfill the promise made by his office to the defendant. Thus, we conclude, in accordance with Pier, that the defendant’s admission was not voluntary. We do not find it necessary to reach the excessive sentence issue.

Accordingly, the defendant’s admission is vacated, the January 8, 1990, order of conviction is reversed, and the cause is remanded for further proceedings before a different trial judge.

Reversed and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.