text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WHITTAKER, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2984
    Opinion filed May 25, 1990.

      Charles I. Schwartz, of Northbrook, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Paula Carstensen, and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a bench trial, defendant, Larry Whittaker, was convicted of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2), armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A—2), and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12—4) and sentenced to six years in prison. On appeal, he contends that he was denied effective assistance by his privately retained counsel. We affirm.

At trial, the State waived opening statement, the defense reserved its statement, and the State then called its first witness, Donald Koehler, the complainant. Koehler testified that at about 8:30 p.m. on February 9, 1987, he went to visit his friend, Wilbur Askew, who lived in a two-story boarding house at 1120 Emerson in Evanston. When he arrived, he climbed the staircase leading to Askew’s second-floor room. When he got to the top of the stairs, defendant suddenly opened a door and tried to grab a bag, containing two quart bottles of beer, which Koehler was carrying. Koehler asked defendant what he was doing and then attempted to leave. When Koehler got about three to four steps down the stairs, defendant grabbed him by the collar. At this point, Askew opened his door and defendant released Koehler. Koehler then followed Askew into his room and placed his bag of beer on a dresser. Without Koehler’s knowledge, defendant had followed them into the room and, while Koehler’s back was turned, pushed Koehler into a chair. Defendant then mumbled something to Askew about his friend and asked Koehler if he had anything on him. Defendant searched Koehler and took a pack of cigarettes from his pocket. He then grabbed Koehler’s head and smashed it into the wall, four to five times, leaving a large circular hole in the wall.

Defendant thereafter pulled a knife, with a four-inch blade, from his pocket and placed the blade against Koehler’s throat, cutting his throat and repeatedly threatening to kill him. When Askew told defendant to take it easy and put his knife away, defendant again mumbled something and threatened to cut Koehler’s nose off. He then thrust the knife into Koehler’s left nostril, creating a sharp pain and causing bleeding as he withdrew it. Defendant also cut Koehler across the bridge of his nose. Askew got a rag to help stop the bleeding. Defendant then took Koehler’s beer and cigarettes and left the room.

After defendant left, Koehler told Askew he had to leave before defendant came back and he then jumped out the window, which was 16 feet from the ground. Koehler landed on the seat of his pants and sustained an injury, later diagnosed as a fracture to his lower lumbar region. He then limped to a local restaurant and called the police. When the police arrived, they went back with Koehler to Askew’s building, and there they found defendant in another room, drinking Koehler’s beer, and arrested him. After the arrest, Koehler went to the hospital.

On cross-examination, Koehler stated that he had never seen defendant before the incident. He acknowledged that he said nothing to Askew, his good friend, about defendant’s grabbing him on the staircase and did not ask for Askew’s help when defendant menaced him with the knife. He further stated that he never put his hands on defendant or made any motions toward him throughout the incident. He also said that he went to the hospital for treatment after the incident but received no bandages, stitches or packing for his nose, and he was able to walk the six or seven blocks from the hospital to the police station without the aid of a cane or crutches.

Wilbur Askew, testifying for the State, stated that at about 8:40 or 8:45 p.m. on February 9, he was lying in his room when he heard a commotion at the front door. He opened the door and saw Donald Koehler and defendant, whom he knew from a previous meeting, standing on the staircase which led to the second floor of his building. Koehler came forward into Askew’s room, Askew followed him and defendant then came in uninvited. Askew’s testimony essentially corroborated Koehler’s testimony except he also testified that defendant admonished him that he should tell his guests how to conduct themselves. He further stated that there was no telephone in his room and that the only means of egress from his room were through a single door or the window.

On cross-examination, Askew stated that he had been on medical supervision for five years and was taking cogentin twice daily for a nervous condition and thorazine once a month as rehabilitation from alcohol and drug abuse. At the time of the incident involved in this case, he had taken his cogentin but not the thorazine. He also denied being in the kitchen area of the boarding house, located in an area separate from his room, with his neighbor, Robert Sanders, at any time during the evening of February 9.

Assistant State’s Attorney Winninger testified for the State that she interviewed defendant at the Evanston police department during the early morning hours of February 10 and he told her that he had “whooped” the complainant “after he started fagoting at me.” He further informed her that he did carry a knife, which he used at work and for personal protection, but denied pulling the knife or using it on Koehler. She also observed Koehler at the police station and noticed that he had cuts on the bridge of his nose, a laceration on the inside and bottom of his nose, an injury to the right side of his neck, a knot on the back side of his head and a limp in his walk.

After Winninger’s testimony and the admission of a wooden handled, four-inch knife which the police found on defendant when they arrested him, the State rested.

After the court denied defendant’s motion for a directed finding, the defense called its first witness, Robert Sanders, without making an opening statement. Sanders testified that he was Askew’s neighbor and had seen him in the kitchen area of the boarding house at about 8:15 p.m. on February 9. He knew it was that time because there was a clock right above his television, which he was watching when he saw Askew in the kitchen. He said that Askew remained in the kitchen for 20 to 25 minutes.

On cross-examination, Sanders was asked how he knew that the time was 9:15 p.m., and Sanders repeated that it was because his clock is on top of his television and he could see the kitchen while watching the television. He said that he knew that Askew was in the kitchen for 20 to 25 minutes but did not see him leave. He further said that it was not unusual for Askew to be in the kitchen. He recalled the police arriving later in the evening but did not recall the specific time of their arrival.

Defendant testified that he lived a short distance from Askew’s boarding house and had been working for an automobile body repair shop in the area for the last eight years. He stated that he used the knife, which had been previously admitted into evidence, in connection with his job. On February 9, he went to the boarding house to visit Robert Sanders. Along the way, he met Koehler, whom he had previously seen in Askew’s room at the boarding house, walking towards the same destination. Defendant observed that Koehler was carrying a bag and asked what was in it. Koehler answered that he had beer in the bag which he was going to drink. After they entered the boarding house together and walked into Askew’s room, defendant asked Koehler for some beer and Koehler gave him some. After he consumed it, he asked Koehler for more and, after assuring Koehler that he would replace any beer he drank, Koehler told him he could help himself. Thereafter, Koehler placed his hand on defendant’s hip and began “rubbing up” on his hip. Defendant initially pushed Koehler away but Koehler repeated this action. Defendant then shoved him against a dresser. Askew was not in the room while this was occurring.

According to the defendant, after he shoved Koehler into the dresser, Koehler began walking toward him with his hands in his pockets. Not knowing what Koehler was up to, defendant pulled his knife out of his pocket, grabbed Koehler by the collar and placed the knife up to his neck. When Koehler said that he had nothing in his pockets, defendant withdrew the knife and warned Koehler to keep his hands off him. When Askew returned, defendant told him that he should talk to his friend because he was “feeling” on him. Defendant then left the room and went to a neighbor’s room, where he later was arrested. He specifically denied taking Koehler’s beer or cigarettes by force, stating that Koehler had voluntarily given him the beer and that he had his own-cigarettes.

On cross-examination, defendant denied telling Assistant State’s Attorney Winninger that he never took the knife out of his pocket or that he had struck Koehler with his fist. He also denied pushing Koehler's head into the wall, shoving his knife in Koehler’s nostril or cutting the bridge of his nose.

After closing arguments, the trial judge found defendant guilty of the armed robbery, armed violence and aggravated battery, stating specifically that he believed the testimony of the State’s witnesses but disbelieved the testimony of both defense witnesses. He further stated that he found the evidence of guilt to be overwhelming.

Before sentencing, defendant filed a motion for a new trial largely predicated on a claim of ineffectiveness of his privately retained counsel. In his motion, defendant raised counsel’s failure to call two individuals, Reverend Charles Sullivan, who was defendant’s uncle, and Jimmie Whittaker, defendant’s mother, as witnesses at the trial. Sullivan was on the defense list of witnesses, and both Sullivan and Jimmie Whittaker were present in court on the day of trial. Sullivan’s affidavit, which was attached to the motion, stated that he had informed defense counsel prior to trial that he had interviewed Koehler on the day after the incident at which time Koehler had told him that he had voluntarily given the beer and cigarettes to defendant and that he got scared and jumped out of the window after the defendant suddenly threatened to cut off his nose. Jimmie Whittaker’s affidavit, also attached to the motion, stated that she had informed defense counsel prior to trial that she had interviewed Askew after the incident and he told her that he did not observe the altercation between her son and Koehler and that he did not know anything about defendant’s use of a knife on Koehler. The State responded to the motion by arguing that defense counsel’s decision to not call these witnesses was an exercise of trial strategy and therefore not a basis for a claim of ineffective assistance. The State also pointed out to the court that Sullivan’s testimony would have been impeachable since Sullivan had told the State’s investigator in an interview prior to trial that he knew nothing about the incident and that defendant was his friend.

After the trial judge heard these arguments, he denied the motion, again stating that he based his decision on his belief in Koehler’s and Winninger’s testimony and disbelief in Sanders’ and defendant’s testimony. He further stated that he did not view Askew’s testimony as significant and even if Sullivan and Jimmie Whittaker were to testify in accordance with their affidavits, his judgment would not change.

Opinion

Defendant contends that his privately retained counsel failed to perform in a reasonably effective manner. In support, he alleges his counsel’s failure to (1) make an opening statement, (2) properly cross-examine Koehler, the complainant, concerning his uninvited advances towards defendant, and (3) call his uncle, Reverend Charles Sullivan, and his mother, Jimmie Whittaker, as witnesses on his behalf.

Under the standards enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, a claim of ineffective assistance of counsel will be sustained if counsel has failed to perform in a reasonably effective manner and there is a reasonable probability that, but for this substandard performance, the outcome of the proceeding would have been different. Illinois brought its standards for review of ineffective counsel claims in line with Strickland in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, and has continuously adhered to these standards. (See, e.g., People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481; People v. Consago (1988), 170 Ill. App. 3d 982, 524 N.E.2d 989.) Under the Strickland standards, there is a strong presumption that counsel has performed in a professionally competent manner and the burden is on defendant to prove otherwise. (See People v. Consago (1988), 170 Ill. App. 3d 982, 988, 524 N.E.2d 989, 993.) Counsel’s performance must not be evaluated in hindsight but rather must be viewed as of the time of his actual performance. (People v. Spicer (1987), 163 Ill. App. 3d 81, 93, 516 N.E.2d 491, 500.) His performance must be viewed in light of his total performance and not just on the basis of isolated acts. (People v. Ayala (1986), 142 Ill. App. 3d 93, 99-100, 491 N.E.2d 154, 158.) The ultimate goal in any evaluation of counsel’s performance is to determine whether the performance has resulted in a breakdown in the adversarial process that our system relies upon for just results. See People v. Schmidt (1988), 168 Ill. App. 3d 873, 882-83, 522 N.E.2d 1317, 1323.

Defendant claims that trial counsel’s failure to make an opening statement constitutes ineffective assistance of counsel. He contends that his counsel gratuitously gave up a valuable opportunity to present the trial judge with a preview of his defense and suggests that the reason he did so was because he had no theory of defense to present.

Trial counsel’s decision to forego an opening statement is not in and of itself evidence of ineffective assistance. (People v. Georgev (1967), 38 Ill. 2d 165, 169, 230 N.E.2d 851, 854.) The presumption is that a decision to forego an opening statement is no more than a tactical choice made by counsel to avoid making an advance disclosure of his trial strategy or his decision whether to call defendant as a witness. That presumption has not been overcome in this case. Defendant argues that this decision indicates that counsel had no theory of the case, but that is not borne out by the record of counsel’s representation in this case. The record does reveal the development of a defense theory that defendant was merely reacting to an unsolicited physical contact by Koehler and took only those steps necessary to prevent such contact. This theory is present in defense counsel’s cross-examination of witnesses, the direct testimony of defendant himself and in counsel’s closing argument.

As further proof that the trial counsel did not have a defense theory, defendant claims that he failed to properly cross-examine Koehler concerning the alleged uninvited physical contact he had with defendant. This simply is not supported by the record. Defendant’s trial counsel conducted the following cross-examination of Koehler:

“Q. At any time, Mr. Koehler, did you put your hand on the defendant?
A. No.
Q. Did you make any motions toward the defendant at anytime, Mr. Koehler?
A. No.
Q. Are you smiling, sir?
A. No.
Q. Is that your normal continence [sic]?
A. Yes.”

Thus, trial counsel did cross-examine Koehler regarding this alleged physical contact and, by doing so, set the stage for further elaboration on this point in the defense case in chief.

Finally, defendant claims that trial counsel’s failure to call his uncle, Reverend Charles Sullivan, and mother, Jimmie Whittaker, as witnesses constituted ineffective representation. He contends that their testimony could have lent significant support to his denial that he attacked Koehler without provocation in the course of committing a robbery and would have diminished the credibility of Askew’s corroboration of the attack. He characterizes counsel’s failure to call these witnesses as an error of omission which cannot be explained in terms of trial strategy.

Defendant has the burden of overcoming the presumption that a decision to not call a witness is within the realm of trial strategy. (See People v. Consago (1988), 170 Ill. App. 3d 982, 988, 524 N.E.2d 989, 993.) Choices which are made on the basis of strategic considerations after a thorough investigation of all matters relevant to plausible options have traditionally been considered to be unchallengeable. (Strickland v. Washington (1984), 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695, 104 S. Ct. 2052, 2066.) A claim of incompetency arising from a matter of trial strategy will generally not support a claim of ineffective representation. People v. Madej (1985), 106 Ill. 2d 201, 214, 478 N.E.2d 392, 397.

Defendant has failed to overcome the presumption that trial counsel’s decision to not call these witnesses was anything but a tactical choice made on the basis of strategic considerations. He fails to point to anything in the record to indicate other, unacceptable reasons for that decision. Significantly, the affidavits of both witnesses indicate that counsel had been informed of their testimony prior to trial. The fact that counsel knew what their testimony would be before he made his decision lends support to the inference that his decision to not call defendant’s uncle or mother was simply a tactical one. (People v. Flores (1989), 128 Ill. 2d 66, 105, 538 N.E.2d 481, 497.) Such a decision, unlike one made after an inadequate investigation (see, e.g., People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875), is presumed to be one made as a matter of trial strategy.

In People v. Consago (1988), 170 Ill. App. 3d 982, 524 N.E.2d 989, the reviewing court was presented with an argument similar to the one made in this case. There, defendant claimed that he received ineffective assistance of counsel because counsel failed to secure an eyewitness to a shooting to testify at trial. Prior to trial, the eyewitness had provided counsel with a sworn statement of his testimony and counsel had initially listed him as a potential witness. Despite the potential importance of this witness’ testimony, the Consago court stated:

“[E]ven if it were [important], the requirements as set forth in Strickland are extremely stringent and the defendant here must overcome the strong presumption of effective assistance of counsel and the general proposition that failure to secure testimony is. generally regarded as a matter of trial strategy.” (Consago, 170 Ill. App. 3d at 988, 524 N.E.2d at 993.)

Noting that counsel knew of the witness’ testimony prior to trial and had even- listed him as a potential witness, the court found that defendant had failed to overcome the strong presumption of effective assistance and the proposition that counsel’s decision was a matter of strategy.

Similarly, in the present case, Sullivan’s and Jimmie Whittaker’s affidavits indicate that counsel knew of their testimony prior to trial and even listed Sullivan as a potential witness. In light of these affidavits and the absence of any indication in the record to the contrary, defendant has failed to overcome the Strickland presumption of effective assistance of counsel and the proposition that counsel’s decision to not call these witnesses was a matter of trial strategy.

Defendant cites to People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875, and Sullivan v. Fairman (7th Cir. 1987), 819 F.2d 1382, as support for his argument that the failure to call these two witnesses constituted ineffective assistance of counsel. Solomon and Sullivan, however, involved inadequate investigation of potential witnesses. In the present case, there is no evidence of any failure to investigate. As the affidavits indicate, trial counsel was first made aware of the content of Sullivan’s and Jimmie Whittaker’s testimony and then decided to not call them as witnesses. Under the standards set forth in Strickland, a decision made under circumstances where the investigation is adequate is “virtually unchallengeable.” Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

Additionally, the witnesses not called in Solomon and Sullivan were occurrence witnesses unrelated to the defendants, whose testimony was deemed vital to the defense. In the present case, neither Sullivan nor Jimmie Whittaker was an occurrence witness, and their close familial relationship with defendant made their testimony.naturally suspect and impeachable by the prosecution. Sullivan’s testimony also was impeachable independently of his familial ties to defendant because of his previous assertion to the State’s investigator that he knew nothing about the incident. Moreover, based on their affidavits, neither would testify to circumstances which would appreciably aid the defense theory. While Sullivan would have provided testimony that Koehler, the complainant, told him he voluntarily shared his beer and cigarettes with defendant, he also would have given potentially damaging testimony that Koehler told him that defendant threatened to cut off his nose. Though testimony that Koehler said that he voluntarily shared his beer would contradict his trial testimony that defendant took the beer by force, its connection to the defense theory was at best collateral. And, had Sullivan testified as contained in his affidavit that Koehler told him that defendant threatened to cut off his nose, he would have been providing testimony which would have severely undermined the theory that defendant’s conduct was a “measured” response to Koehler’s conduct. Jimmie Whittaker’s testimony also would not have significantly aided the defense theory. According to her affidavit, she would have testified that Askew, a witness whose testimony was deemed insignificant by the trial judge, told her that he knew nothing about the incident. Her proposed testimony did not purport to offer any substantive evidence to support the defense theory.

Illinois courts have long adhered to the Strickland principle that trial strategy choices made after thorough investigation of matters relevant to plausible options are presumptively reasonable and virtually unchallengeable. Defendant concedes that Illinois courts have traditionally treated strategy decisions in such a manner but argues that the characterization of a decision as a strategy decision should not shield it from scrutiny on review. He urges us to follow the lead of California courts (see, e.g., People v. Ledesma (1987), 43 Cal. 3d 171, 233 Cal. Rptr. 404, 729 P.2d 839) and engage in a “meaningful scrutiny” or an examination of the actual reasons for a counsel’s strategy decision to determine whether it was soundly based. He cites to a recent Illinois Supreme Court case, People v. Caballero (1989), 126 Ill. 2d. 248, 533 N.E.2d 1089, as support for the proposition that Illinois courts are now beginning to scrutinize the actual reasons for strategy decisions in cases involving a counsel’s decision to not call witnesses.

The Caballero case involved a claim that trial counsel’s failure to introduce mitigating testimony of several witnesses at a capital sentencing hearing constituted ineffective assistance of counsel. In support of the claim, defendant submitted affidavits showing that counsel had not contacted mitigating witnesses until after defendant’s conviction, and then only briefly, and that he rejected several witnesses on the sole basis that they were not categorically opposed to the death penalty. In resolving the claim, our supreme court first recited the Strickland requirements and acknowledged the presumption of reasonableness extending to trial decision based on strategy, but stated that the presumption was negated by the information contained in the affidavits. The court then proceeded to probe the possible reasons for counsel’s decision, including the claim in the affidavit that he rejected several witnesses because of their adverse position on the death penalty question. The court concluded that the claim that counsel decided not to call the witnesses because of their adverse position on the death penalty and the additional claim that he conducted an inadequate investigation required a remand for an evidentiary hearing to determine whether counsel’s decision constituted ineffective assistance.

To the extent that Caballero’s holding purports to be predicated on counsel’s apparent inadequate investigation, it is well within conventional standards for review of ineffective counsel claims. To the extent that the holding also purports to be predicated on the questionable soundness of counsel’s tactical strategies, it would represent a departure from previously accepted guidelines. This incipient departure was critically acknowledged by Justice Ryan in a separate opinion in Caballero. (Caballero, 126 Ill. 2d at 286, 533 N.E.2d at 1104 (Ryan, J., concurring in part, dissenting in part).) He noted that to be consistent with the Strickland requirements the court’s inquiry should have stopped when it had determined that trial counsel had in fact interviewed the witnesses and then made his decision not to call them. When it examined the soundness of counsel’s tactical strategies, it went beyond those requirements.

However, even under the view that Caballero signals a departure from the Strickland guidelines concerning the presumption validity and virtual unchallengeability of strategic choices, it would not change the result in this case. The record indicates ample basis for trial counsel’s decision to not call either Sullivan or Jimmie Whittaker as witnesses. As previously noted, both had close familial ties with defendant, Sullivan’s testimony was subject to impeachment on the basis of his prior inconsistent statement to the State’s investigator, Sullivan’s testimony contained matters which could have been deemed harmful to defendant, and neither Sullivan’s nor Jimmie Whittaker’s testimony appreciably aided the defense theory. Trial counsel reasonably could have concluded, on the basis of these various factors, that their testimony would have little or no value to the defense and could even negatively impact the presentation of the defense theory. Additionally, trial counsel reasonably could have concluded that Jimmie Whittaker’s testimony would in many respects only be cumulative of testimony provided by Robert Sanders and thus of no significant value to the defense. In light of all of these reasons, we- cannot say that counsel’s decision to forego calling these witnesses was not a sound one.

An attorney must often choose among several alternative strategies in presenting a defense in a criminal proceeding. The fact that the one selected proves on hindsight to have been unsuccessful does not of itself denote incompetence. Having reviewed the totality of trial counsel’s performance in this case, we find that he sufficiently subjected the State’s case to the adversarial process so that defendant received, as required under Strickland, “a fair trial *** whose result is reliable.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    MEGHAN GARA, a Minor, by her Mother and Next Friend, Judith B. Gara, et al., Plaintiffs-Appellants, v. CHRIS LOMONACO et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—3536
    Opinion filed May 25, 1990.

      Robert W. Karr and Marion A. Morawicz, both of Robert W. Karr & Associates, Ltd., of Chicago, for appellants.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard C. Robin and Debra I. Danner, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal from the dismissal of their complaint for failure to state a cause of action under section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). We address the issue of whether plaintiffs’ complaint states a cause of action for negligence and wilful and wanton misconduct against teachers and the school district. We affirm.

Plaintiffs, Meghan Gara, a minor, and her mother, Judith Gara, filed a six-count complaint against defendants Chris Lomonaco, M. Schave, and S. Reeves, who were teachers at Meghan’s school, and against School District No. 54. Plaintiffs alleged that on January 24, 1986, Meghan was injured while jazz dancing on wrestling mats in physical education class. The mats were placed on the floor end to end but were not taped down. During the dance, Meghan caught her foot between two mats that overlapped and she fell. She asked defendant Lomonaco, her physical education teacher, for permission to see the school nurse but Lomonaco “refused.” In her next two classes, Meghan requested permission from the teachers, defendants Schave and Reeves, to see the nurse. Both teachers also “refused” her request. Subsequently, plaintiffs learned Meghan’s ankle was fractured.

In count I plaintiffs alleged that defendants Lomonaco, Schave, Reeves, and School District No. 54 were negligent for refusing to allow Meghan permission to see the nurse, failing to examine Meghan to determine whether she needed medical attention, and failing to inform Meghan’s parents that she had been injured so that they could seek medical care. Plaintiffs alleged that as a proximate cause of defendants’ negligence, Meghan suffered an “exacerbation” of her injury, additional pain and suffering, and suffered a permanent injury.

In count II plaintiffs alleged that defendants Lomonaco and School District No. 54 were liable for wilful and wanton misconduct because defendants knew or should have known that wrestling mats which were not taped down would create a dangerous condition, failed to stop the jazz dancing when the mats overlapped, and “recklessly failed to discover” the dangerous condition of the overlapped mats. As a proximate cause of defendants’ wilful and wanton misconduct, Meghan fractured her ankle.

In count III plaintiffs alleged that defendant School District No. 54 was negligent in failing to provide “appropriate” mats for jazz dancing and failed to properly use the wrestling mats by not taping the ends together. As a proximate cause of defendant’s negligence, Meghan fractured her ankle.

Counts IV, V, and VI were identical to counts I, II, and III, respectively, but sought recovery for expenses under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1985, ch. 40, par. 1015).

• Defendants filed an appearance and moved to dismiss plaintiffs’ complaint under section 2—615 (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) for failure to state a cause of action. The trial court granted the motion to dismiss, and plaintiffs filed a timely notice of appeal.

Opinion

In ruling on a motion to dismiss, the court must accept as true all well-pled facts and reasonable inferences from plaintiff’s complaint. (Ausmus v. Board of Education (1987), 155 Ill. App. 3d 705, 508 N.E.2d 298.) Plaintiff’s complaint must allege sufficient facts to support a cause of action. (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 544 N.E.2d 733.) The allegations must be viewed in a light most favorable to the plaintiff, and the action should not be dismissed unless it appears “that no set of facts can be proved which would entitle the plaintiff to relief.” Ausmus, 155 Ill. App. 3d at 707, 508 N.E.2d at 299.

I

Counts I and IV of plaintiffs’ complaint were directed against Meghan’s teachers and the school district. Plaintiffs alleged that defendants were negligent when they refused to give Meghan permission to see the nurse, failed to examine her to determine whether she needed medical attention, and failed to inform her parents that she had been injured.

Relevant to this issue is section 24 — 24 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24—24), which applies to cities with a population of under 500,000. The section provides:

“§ 24—24. Maintenance of discipline. Teachers and other certificated educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1985, ch. 122, par. 24—24.)

The Illinois Supreme Court found that section 24—24 confers immunity to teachers and other certificated educational employees from negligence actions involving activities related to school in nondisciplinary and disciplinary matters. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) Therefore, teachers cannot be liable for a student’s injuries in such cases unless their conduct was wilful and wanton. Kobylanski, 63 Ill. 2d 165, 347 N.E.2d 705.

In Kobylanski, the supreme court reviewed two cases where students brought negligence actions against their teachers and school districts for injuries sustained during physical education class. Both complaints alleged defendants failed to properly supervise the activity in class. The court rejected plaintiffs’ arguments that the statute only conferred immunity in disciplinary matters and found section 24—24 granted immunity to defendants for the activities alleged in plaintiffs’ complaints. Under the situations presented, plaintiffs would have to prove that defendants’ conduct was wilful and wanton.

Seeking to avoid the effect of Kobylanski, plaintiffs argue that counts I and IV state a cause of action for negligence under O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015, where the supreme court found that section 24—24 did not apply to plaintiff’s cause of action for negligence against his teachers and the school district. In O’Brien, plaintiff alleged he was injured in an activity unrelated to school and outside of school property. Plaintiff named two teachers, a student, and the school district as defendants and alleged that the teachers, as agents of the district, directed the student, who did not have medical training, to treat his injury. As a result of the treatment, plaintiff suffered personal injuries. One count of plaintiff’s complaint alleged defendants were liable for negligence. On defendants’ motion, the trial court dismissed plaintiff’s complaint for failure to state a cause of action. The supreme court, however, reversed noting that the immunity under section 24—24 applied only to activities connected with the school program. The court found that defendants’ alleged conduct of directing an untrained student to treat plaintiff was not an activity connected to the school program and that plaintiff’s injury occurred outside of school property in an activity unrelated to school. Further, defendants did not have training to provide medical treatment to plaintiff. The court stated:

“Teachers are not privileged to do everything that a parent may do. Any decision as to the necessity of medical treatment, at least of the type alleged to have been administered here, was for the plaintiff’s parents, rather than his teachers, to make in the first instance. In our opinion, the negligence alleged clearly went beyond and was totally outside the ambit of a teacher’s supervisory function.” (Emphasis added.) (O’Brien, 83 Ill. 2d at 467-68, 415 N.E.2d at 1018.)

The court found defendants’ alleged negligent conduct was outside the scope of section 24—24 and plaintiff’s complaint stated a cause of action for negligence.

O’Brien is distinguishable from the case at bar. O’Brien involved teachers providing medical treatment to a student who was injured outside of school property in an activity unrelated to school. Under that situation the supreme court found that the immunity of section 24—24 did not apply. Here, however, Meghan was injured on school premises in an activity connected with the school program. O’Brien acknowledged that such a situation generally immunizes teachers and school districts from liability for negligence. Also, here defendants did not venture outside of their expertise and impose improper medical treatment as in O’Brien. Further, plaintiffs do not cite and we have not found a case that extended the holding of O’Brien to a case with facts similar to those presented here. The teachers in this case were faced with determining whether it was necessary to allow Meghan to see the school nurse. On the facts alleged in plaintiffs’ complaint, we believe that defendant’s conduct falls within a teacher’s supervisory authority and, therefore, under Kobylanski, section 24—24 provides immunity for such a negligence action. Counts I and IV of plaintiffs’ complaint were properly dismissed.

II

Counts II and V of plaintiffs’ complaint alleging wilful and wanton misconduct were directed against Lomonaco, who was Meghan’s physical education teacher, and the school district. Plaintiffs alleged that Lomonaco, as an agent of the school district, knew or should have known that wrestling mats which were not taped down and used for jazz dancing would create a dangerous condition, failed to stop the jazz dancing when the mats overlapped, and failed to discover the danger of overlapped mats when it could have been discovered with ordinary care.

A complaint for wilful and wanton misconduct must allege facts to support “either a deliberate intention to harm or an utter indifference *** or conscious disregard” for plaintiff’s welfare. (Adkins, 129 Ill. 2d at 518, 544 N.E.2d at 743.) Despite the rule that pleadings are to be liberally construed, a complaint must allege facts necessary to support recovery under a cause of action. Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 501 N.E.2d 995.

In their brief, plaintiffs state that “perhaps” the facts of the wilful and wanton misconduct count were “too subtle” in alleging how the jazz dancing was dangerous. Plaintiffs then “elaboratfed]” on the allegations of their complaint. Because this court can only review the allegations of plaintiffs’ complaint in determining whether it states a cause of action (MBL (USA) Corp. v. Diekman (1985), 137 Ill. App. 3d 238, 484 N.E.2d 371), we disregard these elaborations in plaintiffs’ brief.

Plaintiffs assert that the present case is “not too dissimilar” from Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877, where plaintiff, a student in an industrial arts class, was hammering scrap metal into a hole in an anvil without wearing safety goggles. The teacher observed him during this activity but did not tell him to wear goggles. Plaintiff was injured when a metal scrap flew into his eye. Summary judgment was granted in defendants’ favor. On review, the appellate court found that the complaint stated a cause of action for wilful and wanton misconduct but reversed the summary judgment because the question of whether the conduct was wilful and wanton was one of fact.

Although Hadley was on review from summary judgment, plaintiffs in the present case rely on the appellate court’s finding that the complaint stated a cause of action for wilful and wanton misconduct. The court in Hadley relied on plaintiff’s allegations that the teacher was present while plaintiff was hammering metal into an anvil without protective goggles but did not direct him to wear goggles and that the teacher knew or should have known that the metal could splinter and cause an injury. Hadley, however, presented a different factual situation from the case at bar. In Hadley, plaintiff alleged the teacher actually observed plaintiff in a situation that the court found “dangerous” but the teacher did nothing. (Hadley, 123 Ill. App. 3d at 23, 462 N.E.2d at 881.) Here, even assuming the activity was dangerous, there was no allegation that Lomonaco observed a dangerous situation and failed to act. Therefore, Hadley is not dispositive of the issue before us.

In this case, plaintiffs alleged that Lomonaco directed Meghan to jazz dance on wrestling mats which were not taped down, that the mats overlapped during the dance, and that Lomonaco did not discover the overlapped mats or stop the activity. To support a cause of action for wilful and wanton misconduct, plaintiffs must allege facts which if proven exhibit a deliberate intention to harm or an utter indifference or conscious disregard for Meghan’s safety. Plaintiffs did not allege Lomonaco deliberately intended to harm Meghan. Further, the facts alleged do not support a finding that Lomonaco’s conduct exhibited an utter indifference or conscious disregard for Meghan’s safety. The allegations of counts II and V arguably state a cause of action for negligence for which defendants would be immune; however, defendants’ conduct did not rise to the level of wilful and wanton misconduct. Therefore, the trial court’s dismissal of counts II and V of plaintiffs’ complaint was proper.

Ill

Lastly, in counts III and VI plaintiffs alleged that the school district was negligent when it failed to provide appropriate mats for jazz dancing and failed to properly use the wrestling mats.

The leading case in the area of a school district’s liability for furnishing equipment is Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323. In Gerrity, plaintiff alleged that the school district was negligent in furnishing him with an “ill-fitting and inadequate football helmet.” (Gerrity, 71 Ill. 2d at 49, 373 N.E.2d at 1324.) The trial court dismissed the complaint based on the supreme court’s decision in Kobylanski that under the School Code the school district was immune from negligence actions and could only be sued for wilful and wanton misconduct. On appeal from the dismissal of the complaint, the supreme court in Gerrity found that Kobylanski did not apply to a negligence action against the school district in furnishing equipment. The court distinguished Kobylanski and other cases because they involved a teacher’s supervision and control of students. The court in Gerrity found that the alleged negligent conduct of the school district in furnishing equipment was a separate function which did not affect the teacher-student relationship. Therefore, the court found plaintiff’s complaint stated a cause of action for negligence in “furnishing equipment *** alleged to be inadequate, ill fitting and defective and *** was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff.” Gerrity, 71 Ill. 2d at 52, 373 N.E.2d at 1326.

Plaintiffs in this case alleged that the school district failed to provide “appropriate” mats for jazz dancing but did not allege how the mats were inappropriate. For example, plaintiffs rely on Ausmus (155 Ill. App. 3d 705, 508 N.E.2d 298), where plaintiff alleged the school board was negligent when it furnished regulation size and weight bats for a third-grade physical education class. Plaintiff alleged the bats were too heavy for the students and, as a result, plaintiff was hit in the face with a bat swung by another student. On appeal from the dismissal of the complaint, the appellate court found the complaint stated a cause of action for negligence in failing to furnish safe athletic equipment fit for the purpose intended. In Ausmus, plaintiff specifically alleged how the bats were not fit for the purpose intended. In this case, however, plaintiffs merely concluded the mats were inappropriate without any supporting facts.

Plaintiffs also alleged that the school district failed to appropriately use the wrestling mats by not taping them down. However, teachers have the authority to supervise their students’ use of equipment. (Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 395 N.E.2d 538.) In this case, the school district’s liability would, therefore, be dependent on Lomonaco’s conduct as its agent, and under section 24—24, the school district would be immune from a negligence action involving the use of the mats. (Thomas, 77 Ill. 2d 165, 395 N.E.2d 538.) The trial court properly dismissed counts III and VI of plaintiffs’ complaint for failure to state a cause of action for negligence against the school district.

Affirmed.

MURRAY and GORDON, JJ., concur.

      Section 34—84a of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 34—84a) is applicable to cities with a population of more than 500,000 and is identical to section 24-24.

       Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and listened to the oral argument tape.


text:
    THE PEOPLE ex rel. GORDON JOHNSON, Director of the Department of Children and Family Services, Plaintiff-Appellee, v. FRANKLIN KULLE et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—3731
    Opinion filed May 25, 1990.

      Whitted & Spain, P.C., of Chicago (Brooke R. Whitted and Nancy L. Grauer, of counsel), for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (W. Dennis Richardson, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows entry of summary judgment in favor of the Illinois Department of Children and Family Services in an action to enjoin Franklin and Annette Kulle and the Countryside Montessori School from operating an unlicensed day care center -with respect to its programs for children under three years of age in violation of the Child Care Act of 1969 (Act) (Ill. Rev. Stat. 1987, ch. 23, pars. 2211 through 2230).

We affirm with modification of the circuit court’s order.

Franklin and Annette Kulle are the founders and administrators of the Countryside Montessori School (Countryside), located in North-brook, Illinois. Countryside offers programs for children aged 18 months to 12 years. The school is accredited by the Association Montessori Internationale, is a member of the Illinois Montessori Society, and is registered with the Illinois State Board of Education. Countryside operates on a calendar with programs beginning in September and ending in June of the following year.

Informational literature contained in the record indicates the following programs are offered at Countryside: “Parent-Infant,” for children who are between 9 and 18 months old and their parents; “Toddler,” for children under 21lz years old; “Extended Day,” for children “ready for a full day in the Montessori classroom”; “Elementary,” for children 6 to 12 years old; and “Stay and Play,” offering “after school care” from 3 p.m. to 5 p.m. for children aged four years and older who are enrolled in the “Extended Day” or “Elementary” programs. Countryside offers a “Breakfast Club” program from 8 a.m. to 8:30 a.m. for “children whose parents need an early drop-off time in the morning.” The record also indicates Countryside offers a three-year “Primary” program, which defendants’ brief indicates is open to children from to 6 years of age. Countryside also conducts a “Summer Camp” program which includes a “Toddler” program for children 18 to 30 months old, a “Primary” program for children 2½ to 6 years old, and a “Computer Program” for children 5 to 10 years old.

On June 27, 1988, the Cook County State’s Attorney, at the request of the Director of the Illinois Department of Children and Family Services (DCFS), filed a complaint for an injunction to prohibit Countryside from operating as an unlicensed day care center in violation of the Act. (See Ill. Rev. Stat. 1987, ch. 23, par. 2221.1.) Specifically, the complaint alleged the operation of Countryside constituted operation of an unlicensed day care center because Countryside “provided care for more than three unrelated children in a facility other than a family home for less than twenty-four hours per day” in violation of section 3 of the Act. Section 3 provides, in pertinent part:

“(a) No person *** may operate or conduct any facility for child care, as defined in this Act, without a license or permit issued by the [DCFS] or without being approved by the [DCFS] as meeting the standards established for such licensing[.]” Ill. Rev. Stat. 1987, ch. 23, par. 2213.

Defendants filed an affirmative defense, asserting Countryside was a school, not a day care center, and, as such, was exempt from DCFS regulation.

On August 24, 1988, the State moved for summary judgment on the complaint.

Defendants, in turn, filed a cross-motion for summary judgment supported by a memorandum to which defendants attached, as exhibits, numerous materials describing Countryside’s programs and the affidavits of Franklin and Annette Kulle. Franklin Kulle’s affidavit stated Countryside was recognized as a nonpublic school by the Cook County superintendent of schools. Further, no children under three years old were enrolled in the “Breakfast Club,” “Stay and Play,” or “Extended Day” programs. Annette Kulle’s affidavit stated that, in offering the “Toddler” and “Primary” programs to children under age three, Countryside’s purpose was to educate and instruct rather than to provide custodial care and supervision.

In a written memorandum and order, the trial judge denied defendants’ motion and granted summary judgment in favor of the State. The order recited that Countryside operated as an unlicensed day care center with respect to its programs for children under three years old and enjoined defendants from receiving children under three years old into Countryside’s programs without a day care license.

This appeal followed.

Opinion

On appeal, it is not disputed that programs administered at Countryside for children who are at least three years old are exempt from the Act. Rather, we are only presented with the question concerning whether Countryside may conduct its programs designed for children under three years old without a day care license.

It is defendants’ position that because Countryside’s programs are educational in nature, teaching what may be generally described as comprehensive academic and social skills, the programs are exempt from coverage of the Act regardless of the age of the children enrolled. Defendants rely primarily on the observation that the Act does not define the term “day care.” Therefore, defendants reason, the term “day care” must be given its commonly understood meaning as pertaining to provision of custodial, not necessarily educational, care for children. However, defendants contend, the Act is limited, with certain exclusions, to regulating only day care programs of custodial nature, not programs such as Countryside’s.

We do not agree. We likewise observe the Act does not define the term “day care.” We further note the absence of discussion of that term in legislative debates on the Act. However, a careful reading of the Act’s provisions reveals that, while the term “day care” is not expressly defined, the term is given meaning through definition in the Act of the entities deemed to be engaged in the practice of providing day care and of the types of programs excluded from consideration as day care.

Section 3(a) of the Act mandates licensure for any person, group of persons, or corporation operating or conducting “any facility for child care.” (Ill. Rev. Stat. 1987, ch. 23, par. 2213(a).) We note that a child is defined, pertinent here, as “any person under 18 years of age.” (Ill. Rev. Stat. 1987, ch. 23, par. 2212.01.) Such a “facility for child care” is defined in section 2.05 to mean:

“[A]ny person, group of persons, agency, association or organization, whether established for gain or otherwise, who or which receives or arranges for care or placement of one or more children, unrelated to the operator of the facility, apart from the parents, with or without the transfer of the right of custody in any facility as defined in this Act, established and maintained for the care of children.” Ill. Rev. Stat. 1987, ch. 23, par. 2212.05.

Under the pertinent operative language of section 2.05, defendants’ activities constitute operation of a facility for child care and therefore require licensure if Countryside is a facility as defined in the Act and the enrollment of children in Countryside’s programs constitutes receipt of children there apart from their parents. We conclude Countryside constitutes such a facility for child care because its programs come within the scope of programs deemed as being conducted by a “day care center” as defined in the Act.

The first sentence of section 2.09 of the Act defines a “day care center” broadly as

“any child care facility which regularly provides day care for less than 24 hours per day for (1) more than 8 children in a family home, or (2) more than 3 children in a facility other than a family home.” Ill. Rev. Stat. 1987, ch. 23, par. 2212.09.

The controversy in the instant case centers on the determination of what the General Assembly contemplated as constituting day care because that term is not given express definition in the Act. That controversy is resolved through application of a basic rule of statutory interpretation that the inclusion of one thing in a statute necessarily implies the exclusion of others. (See In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 131 N.E.2d 487.) We are guided by that rule because, in the remaining language of section 2.09, the General Assembly provided specific exclusions as to activities which are not to be deemed activities of a day care center.

Specifically, in the remainder of section 2.09, the General Assembly provided that the term “day care” does not include:

“(a) programs operated by public or private elementary school systems or secondary level school units or institutions of higher learning which serve children who shall have attained the age of 3 years; (b) programs or that portion of the program which serves children who shall have attained the age of 3 years and which are recognized by the State Board of Education; (c) educational program or programs serving children who shall have attained the age of 3 years and which are operated by a school which is registered with the State Board of Education and which is recognized or accredited by a recognized national or multistate educational organization or association which regularly recognizes or accredits schools; (d) programs which exclusively serve or that portion of the program which serves handicapped children who shall have attained the age of 3 years but are less than 21 years of age and which are registered and approved as meeting standards of the State Board of Education and applicable fire marshal standards; (e) facilities operated in connection with a shopping center or service, religious services, or other similar facility, where transient children are cared for temporarily while parents or custodians of the children are occupied on the premises and readily available; (f) any type of day care center that is conducted on federal government premises; (g) special activities programs, including athletics, crafts instruction and similar activities conducted on an organized and periodic basis by civic, charitable and governmental organizations; (h) part day child care facilities, as defined in [s]ection 2.10 of this Act; or (i) programs or that portion of the program which (1) serves children who shall have attained the age of 3 years, (2) is operated by churches or religious institutions and described in [s]ection 501(c)(3) of the federal Internal Revenue Code, (3) receives no governmental aid, (4) is operated as a component of a religious, nonprofit elementary school, (5) operates primarily to provide religious education, and (6) meets appropriate State or local health and fire safety standards.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 23, par. 2212.09.

Relevant here is the exclusion contained in subsection (c), above. It is that express exclusion which necessarily implies, under the design of section 2.09, that programs for children under three years old, otherwise falling within the scope of the description of programs under subsection (c), must constitute programs giving rise to a determination that an entity providing such programs constitutes a day care center. In other words, the omission of an exclusion in section 2.09 for educational programs for children less than three years old indicates a legislative intent to include such programs within the ambit of day care center licensing requirements.

Essentially, reading sections 2.05 and 2.09 together, if one receives or places children into any facility apart from parents on a regular basis for less than 24 hours, without transfer of custody rights, then one is engaged in the practice of day care, as a day care center is defined by the Act, and must be appropriately licensed where no exclusion provided in section 2.09 is applicable. Therefore, we conclude Countryside must be licensed as a day care center with respect to its educational programs in which children are enrolled who are under three years old and who attend those programs apart from their parents. However, we note the circuit court did not include, in its order requiring licensure for programs in which children less than three years old participate, the element concerning attendance of those children apart from their parents. To that extent, we modify the order of the circuit court to include that element.

As an alternative argument, defendants contend application of the Act violates liberty and property rights under the fifth amendment because the licensing requirements undermine the Montessori teaching philosophy. Defendants also contend application of the Act violates defendants’ first amendment rights of free speech because, as a day care center, defendants would be required to post their license in a prominent location and would be required to supply parents of students with a pamphlet concerning day care centers. See 89 Ill. Adm. Code §§407.6, 407.8(d) (1985).

We find no merit in either of the above contentions. Even accepting the position that operating, or sending a child to, a Montessori school involved fundamental rights, we believe the State has an overriding interest in regulating the field to protect children less than three years old. (See Ginsberg v. New York (1968), 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274.) Further, because Countryside constitutes a day care center as defined in the Act for certain of its programs as outlined above, Countryside is obligated to comply with regulations respecting day care centers to that extent. We fail to see how compliance with applicable regulations concerning posting of license or supplying a pamphlet in conjunction with the operation of programs which define Countryside as a day care center impinges on any first amendment rights.

Affirmed as modified.

COCCIA, P.J., and MURRAY, J., concur.


author: JUSTICE MURRAY

text:
    ANTHONY BROWN et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF CORRECTIONS et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—88—3791
    Opinion filed May 25, 1990.
    Rehearing denied July 2, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Gail E. Mrozowski, of Cornfield & Feldman, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Various State agencies, the Department of Corrections, State of Illinois (DOC), the Department of Central Management Services, State of Hlinois (DCM), and the Civil Service Commission (CSC), State of Illinois, appeal from a decision of the circuit court of Cook County reversing an order of the Civil Service Commission in a case involving State employees at a State correctional center. The plaintiffs are Anthony Brown and 15 other employees of the DOC at its Statesville facility. The facts are not in dispute.

The plaintiffs held the position described as correctional therapy worker. The duties associated with the position of correctional therapy worker appeared to be the providing of recreational services to inmates in conjunction with providing security. In 1981 a group audit was performed on the position of correctional therapy worker. As a result of the audit the plaintiffs were reallocated downward to the position of correctional officer. The effect of this job action was to transfer plaintiffs from the leisure time services department of the States-ville Correctional Center to the security department.

Plaintiffs filed a complaint with the Civil Service Commission charging that the downward reallocation from correctional therapy workers to corrections officers violated the Hlinois Personnel Code (Ill. Rev. Stat. 1985, ch. 127, par. 63b101) and rules promulgated thereunder.

After a hearing, the hearing officer concluded that the reallocation was improper and violated the Personnel Code and rules. In so finding, the hearing officer assessed the reallocation on three criteria: (1) that more than 50% of the duties remained the same; (2) that similar qualifications were required; and (3) the change did not drastically alter the intent of the position. The hearing officer concluded that the change altered the original intent of the employees’ position. Since all three criteria for reallocation were not met, the hearing officer held that reallocation was an improper method for reallocating the plaintiffs to the position of correctional officer. The Civil Service Commission adopted the hearing officer’s findings but rejected the conclusion that the impropriety in the reallocation violated the Personnel Code.

Plaintiffs filed an administrative review action with the circuit court of Cook County to review the Civil Service Commission’s order.

On November 30, 1989, the trial court entered its final order reversing the Civil Service Commission, making the following findings:

(1) the findings of the hearing officer are not contrary to the manifest weight of the evidence, and
(2) if the Commission (Civil Service Commission) reversed the findings of the hearing officer the decision would be against the manifest weight of the evidence; however, the Commission adopted the findings of the hearing officer and there is no support for the finding of the Commission (Civil Service Commission) that no violation occurred.

The defendants filed a prompt appeal.

The State departments argue on appeal that the reallocation did not violate the Personnel Code. The State departments argue that the Commission, recognizing the hearing officer’s ruling that the employees were misassigned, characterized personnel’s use of reallocation as “irregular” rather than “improper.” The pertinent provision of the Illinois Personnel Code involved in this case is section 2 of that law (Ill. Rev. Stat. 1985, ch. 127, par. 63b 102). The Personnel Code reads, “Purpose. The purpose of the Personnel Code is to establish for the government of the State of Illinois a system of personnel administration under the Governor, based on merit principles and scientific methods.” Ill. Rev. Stat. 1985, ch. 127, par. 63b102.

In applying civil service laws, Illinois courts have held that the reason for the existence of a Personnel Code is to protect the public and in carrying out that purpose they protect civil service employees. People v. Niewinski (1957), 13 Ill. App. 2d 307, 142 N.E.2d 151.

It is settled law that the findings of fact of the Civil Service Commission are prima facie true. Unlike findings of fact, agency determinations of cause are not prima facie true and correct. (Jenkins v. Universities Civil Service Merit Board of State Universities Civil Service System (1982), 106 Ill. App. 3d 215, 221, 435 N.E.2d 804, 809.) A reviewing court is not required to give an administrative agency’s conclusion of law the same deference that it gives its findings of fact. (Flex v. Department of Labor (1984), 125 Ill. App. 3d 1021, 1024, 466 N.E.2d 1050, 1053.) A court may affirm a factual conclusion as not against the manifest weight of the evidence. However, even if the court might reach an opposite conclusion, a court cannot let a decision stand based upon an erroneous construction of the statute. Nestle Co. v. Johnson (1979), 68 Ill. App. 3d 17, 19, 385 N.E.2d 793, 795.

Based on the above-settled rules we must affirm the trial judge. The hearing officer issued a recommended finding of fact that the reallocation was improper. The Civil Service Commission adopted those findings. Therefore, the Commission’s conclusion based on those findings, to wit “that the reallocation process was irregular but did not rise to a violation of the code,” was not binding on the trial court.

Nothing in the civil service code authorizes or permits either an improper or irregular reallocation plan. The act and the law specifically indicate that its purpose is to protect employees even in connection with their classification. (Ill. Rev. Stat. 1987, ch. 127, par. 63bll0.) The jurisdiction of the Civil Service Commission is a limited one and any authority claimed by it must be conferred upon it by statute. (People v. Niewinski (1957), 13 Ill. App. 2d 307, 142 N.E.2d 151.) Nothing in the statute confers on the Civil Service Commission the jurisdiction to uphold either an irregular or improper reallocation policy.

For the above reasons, we affirm the trial judge.

Judgment affirmed.

LORENZ and GORDON, JJ., concur.


text:
    DELORES VANCE, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee (Chicago Transit Authority, Defendant).
    First District (5th Division)
    No. 1—89—0859
    Opinion filed May 25, 1990.
    Keil M. Larson, of Law Offices of Arthur S. Gomberg, of Chicago, for appellant.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Delores Vance, appeals from the entry of summary judgment under section 2—1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) in favor of defendant, the City of Chicago (city). We address the issue of whether the city owed a duty of care to plaintiff, who was injured when she fell in a pothole in the street after leaving a Chicago Transit Authority (CTA) bus. For the following reasons, we affirm.

Plaintiff filed a complaint against the city and the CTA and alleged that on October 5, 1984, she was injured in the street when she fell after stepping off a CTA bus. The CTA was dismissed from the case and is not a party to this appeal.

The city answered the complaint denying the material allegations. The city subsequently filed a motion for summary judgment relying on plaintiff’s deposition testimony that she stepped off the bus into a pothole in the street and twisted her ankle. On a photograph of the scene which was an exhibit to the deposition, plaintiff indicated that the bus let her off outside of the crosswalk at the bus stop. Plaintiff testified that the pothole “was close to the sidewalk and the street right at the curb” and that the pothole was located in the street approximately one foot from the sidewalk.

The city argued it did not have a duty to keep the street in a reasonably safe condition for pedestrians. The trial court granted the motion and plaintiff now appeals.

Opinion

Summary judgment should be granted when the pleadings, depositions, admissions, and affidavits show there is no genuine issue of material fact and the moving party is entitled to judgment as a mater of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Whether the city owed plaintiff a duty of care is a question of law that can be decided on a motion for summary judgment. Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572.

Section 3—102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3—102(a)) explains the city’s duty to maintain its property:

“[A] local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used[.]”

A municipality has a duty to reasonably maintain its streets for vehicular traffic (Ross v. City of Chicago (1988), 168 Ill. App. 3d 83, 522 N.E.2d 215) and to reasonably maintain its crosswalks for pedestrians (see Mason v. City of Chicago (1988), 173 Ill. App. 3d 330, 527 N.E.2d 572; Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357; Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590). In Mason, Risner, and Deren, it was held that a city had no duty to reasonably maintain its streets for pedestrians who were injured while walking in the street outside the crosswalk.

To establish the city’s duty in this case, plaintiff relies on Di Domenico v. Village of Romeoville (1988), 171 Ill. App. 3d 293, 525 N.E.2d 242, where the Third District Appellate Court found the village owed a duty to plaintiff who fell in a hole in the street. In Di Domenico, plaintiff legally parked his car in the street. While walking in the street to retrieve something from the trunk, he fell in a hole and sustained injuries. The hole was located a few feet behind plaintiff’s car. Plaintiff’s complaint against the village was dismissed for failure to state a cause of action because the trial court found the village did not owe a duty to maintain its streets for pedestrians. The appellate court reversed because it found that the village must have recognized a driver would have to walk in the street from his legally parked car to the sidewalk. Therefore, the village had a duty to drivers and their passengers to maintain the area of the street where cars were allowed to park. Despite plaintiff’s reliance on Di Domenico, we do not find it persuasive to the resolution of the case at bar.

Plaintiff analogizes the present situation to Di Domenico by citing section 27 — 276(c) of the Chicago Municipal Code (Chicago Municipal Code §27 — 276(c) (1982)), which states:

“The driver of a bus shall enter a bus stop *** on a public street in such a manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb[.]”

Plaintiff argues that because the ordinance requires the CTA to stop within 18 inches of the curb to let passengers off a bus, it was foreseeable that passengers would walk within that 18 inches of street to the curb. As a result, plaintiff argues that the city had a duty to reasonably maintain streets within 18 inches from the curb at a bus stop for the safety of CTA passengers.

Unlike the situation in Di Domenico where the village allowed parking in the street, in this case section 27—276(c) of the Chicago Municipal Code does not specifically allow the CTA to drop passengers off in the street. Therefore, bus passengers were not intended and permitted users of the street as required under section 3—102(a) of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3—102(a)).

Under the facts presented for the city’s motion for summary judgment, the city did not owe plaintiff a duty to keep the street in a reasonably safe condition for pedestrian traffic. The trial court properly entered summary judgment in the city’s favor.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    THOMAS RAJKOVICH, Plaintiff-Appellant, v. ALFRED MOSSNER COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—89—1034
    Opinion filed May 25, 1990.

      Andrea B. Friedlander, of Deerfield, for appellant.
    Mark B. Ruda and Mark E. Condon, both of Condon, Cook & Roche, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Thomas Rajkovich appeals from the dismissal of his complaint for damages arising out of a damaged architectural drawing.

We reverse and remand.

Allegations made in the record establish that, on April 29, 1988, plaintiff, an architect, brought an architectural drawing he was preparing for display at an exhibition to defendant, Alfred Mossner Company (Mossner), to engage Mossner’s services in making a photographic reproduction. Sometime after plaintiff returned to Mossner for the drawing and reproduction, however, plaintiff discovered the drawing had been creased, rendering it unsuitable for his purposes.

On June 14, 1988, plaintiff filed a verified three-count complaint against Mossner. Each count incorporated the following identical substantive allegations: when plaintiff delivered the drawing to Mossner, he instructed a “floor manager” that the drawing could not be folded because resulting creases would prevent application of water color paints necessary to complete the drawing; the individual acknowledged plaintiff’s instructions; at the time plaintiff picked up the drawing, paying $9.32 for Mossner’s services, the drawing was rolled around a cardboard tube, precluding detection of creases; plaintiff discovered the creases when examining the drawing at home; the drawing had to be redone because the damage was irreparable; due to the unique nature of the drawing, plaintiff alone could accomplish the task; and the effort would require 172 hours of work at plaintiff’s hourly rate of $85.

Count I was based on a theory of negligence. Count II alleged a theory of breach of contract based on an additional allegation that the contract consisted of Mossner’s promise to photographically reproduce plaintiff’s drawing, for a fee, without folding or creasing it. Count III alleged a theory of res ipsa loquitur based on an additional allegation that the drawing was in Mossner’s control between the time plaintiff delivered and picked up the drawing.

Mossner subsequently moved to dismiss the complaint pursuant to section 2—615 of the Code of. Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). Following a hearing on the motion, the trial judge dismissed counts I and III of the complaint with prejudice, reasoning that the transaction was one sounding in contract, not tort. The trial judge dismissed count II, without prejudice, based on the determination that plaintiff had not adequately alleged a meeting of the minds between the parties and because the damages, as pled, were speculative. The trial judge indicated plaintiff would, if he wished, have opportunity to amend that count. Plaintiff declined, at that time, to amend count II.

This appeal followed.

Opinion

All three counts of plaintiff’s complaint allege the following identi-. cal set of facts: plaintiff’s temporary relinquishment of physical control over the drawing to Mossner in order to permit Mossner to make a photographic reproduction of the drawing for plaintiff for a fee. The legal effect of those allegations is to establish the parties’ relationship • as one for bailment, a characterization all but conceded by counsel for both parties at oral argument.

Bailments can be established by express contract or by implication and exist where personal property is delivered by one person to another for a particular purpose under an agreement that, after the purpose has been fulfilled, the same property is to be returned to the person delivering it. (See Kirby v. Chicago City Bank & Trust Co. (1980), 82 Ill. App. 3d 1113, 403 N.E.2d 720; 8 C.J.S. Bailments §§2, 5, 12 (1988).) Although several different types of bailments are recognized at common law, plaintiff’s allegations establish that the bailment in the instant case was one for the parties’ mutual benefit because the agreement contemplated compensation in return for work performed with regard to the personal property delivered. (S. Williston, Contracts §§1032, 1040 (3d ed. 1967).) In some ways, the transaction alleged is similar to that involving the processing of photographic film, which; we note, has been recognized in other jurisdictions as bailment. See Morgenstern v. Eastman Kodak Co. (1983, N.D. Ohio), 569 F. Supp. 474; Carr v. Hoosier Photo Supplies, Inc. (Ind. App. 1981), 422 N.E.2d 1272, vacated on other grounds (1982), 441 N.E.2d 450.

Keeping in mind the parties’ relationship in review of the dismissal of plaintiff’s complaint, we must determine whether plaintiff could properly plead alternative theories of recovery for damage to the drawing sounding in tort and contract based on the facts as alleged. We must also consider whether, in regard to count II, plaintiff’s complaint properly alleges a cause of action for breach of contract.

There exists little authority in this State regarding choice of remedies available to a bailor where the subject personal property has been damaged by the bailee. Generally, it has been recognized that “where a bailee for mutual benefit fails to exercise proper care for the property and it is damaged, the bailor may maintain an action against him in the nature of an action in assumpsit for his breach of contract or he may maintain an action sounding in tort.” (8 C.J.S. Bailments §104 (1988).) However, it is also recognized that “where the bailee’s breach of contract is simply the neglect of a duty expressly provided for by the contract itself, the action will be construed as ex contractu and not for tort.” 8 C.J.S. Bailments §104 (1988).

In the instant case, each count of plaintiff’s complaint alleged injury arising entirely within the context of plaintiff’s engagement of Mossner’s services to make a photograph reproduction of the drawing. And each count alleged the injury occurred contrary to plaintiff’s express instructions not to crease the drawing. While it might be argued the alleged instructions further delineated terms of the parties’ agreement, such that Mossner’s alleged breach could be considered simple neglect of duty, we do not view those allegations in such fashion so as to limit plaintiff’s choice of remedies. Mossner’s obligation at law as a bailee for mutual benefit would be to exercise reasonable care so as not to damage plaintiff’s drawing. (See Sampson v. Birkeland (1965), 63 Ill. App. 2d 178, 211 N.E.2d 139; S. Williston, Contracts §1034 (3d ed. 1967).) The allegations respecting plaintiff’s instructions cannot be considered more than an explicit statement of Mossner’s existing legal obligation. We therefore do not agree that counts I and III should have been dismissed on the basis that plaintiff’s action was exclusively one based on contract.

Further, we note, with regard to damages alleged in counts I and III, it has been recognized that where personalty is bailed for the purpose of having work done thereon and the article is damaged so as to have lost its value, the bailee may recover, in tort, the value of the item. (8 C.J.S. Bailments §104 (1988).) Illinois courts have also recognized, within the context of tort actions, that the value of destroyed personal property is measured according to its fair market value before destruction. (See Tozzi v. Testa (1981), 97 Ill. App. 3d 832, 423 N.E.2d 948.) The absence of an established fair market value, however, does not necessarily preclude an action for loss of personal property. Damages may be ascertained based on replacement cost, value to plaintiff, or by other rational means and from such elements as are obtainable. See Long v. Arthur Rubloff & Co. (1975), 27 Ill. App. 3d 1013, 327 N.E.2d 346.

In the instant case, because plaintiff alleged the drawing was intended for exhibition, plaintiff could not satisfy the element of alleging damages to support an action in tort in counts I and III based on market value of the drawing. However, although plaintiff may not be successful in actually establishing the replacement cost of the drawing as alleged in the complaint, those allegations are sufficient to supply the requisite element of damages to support tort actions in counts I and III to withstand a motion to dismiss under section 2—615.

As to count II, we have noted above that where the bailee has damaged personal property of the bailor, the bailor may seek recovery against the bailee for breach of contract. In that regard, the rules applicable to determine the sufficiency of allegations necessary to support actions, generally, apply, as well, in an action between a bailor and bailee. (8 C.J.S. Bailments §109 (1988); see also Kirby v. Chicago City Bank & Trust Co. (1980), 82 Ill. App. 3d 1113, 403 N.E.2d 720.) In order to successfully state a cause of action for breach of contract, a party must allege the existence of a valid and enforceable contract, breach of contract by defendant, plaintiff’s performance of all conditions required of him, and existence of damages as a consequence of breach. Allstate Insurance Co. v. Winnebago County Fair Association, Inc. (1985), 131 Ill. App. 3d 225, 475 N.E.2d 230.

As to the first three elements of the contract action stated in count II, plaintiff sufficiently alleged the existence and terms of an oral agreement between the parties for Mossner to make a photographic reproduction of the drawing, for a fee, without creasing it, that he paid Mossner the $9.23 fee for the service, and that Mossner breached the agreement by creasing the drawing.

As to damages, plaintiff alleged that, as a direct result of the breach, defendant was required to recreate the drawing and that damages should be measured according to the time it took plaintiff to recreate the drawing multiplied by plaintiff’s hourly rate. Generally, in actions based on a contract, the nonbreaching party may recover only those damages which are reasonably foreseeable and within contemplation of the parties at time the contract was executed. (M.A. Lombard & Son Co. v. Public Building Comm’n (1981), 101 Ill. App. 3d 514, 428 N.E.2d 889.) While plaintiff has not specifically alleged, in count II, that the parties contemplated damages for breach could amount to the time it took plaintiff to recreate the drawing at plaintiff’s hourly rate, we are aware of no authority indicating plaintiff’s contract action must fail for that reason. Plaintiff has alleged damages flowing directly from the breach, which allegations, we believe, are sufficient to withstand the motion to dismiss. Whether plaintiff can prove that such damages, as alleged, were contemplated by the parties at the time the contract was executed must await determination by the trier of fact.

For reasons stated above, we reverse the order of the circuit court dismissing plaintiff’s complaint and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

COCCLA, P.J., and GORDON, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGG CONNAL, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—88—0729, 1—88—2523 cons.
    Opinion filed May 25, 1990.

      Michael J. Pelletier and Mitchell Cokatten, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Linda S. Halperin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Following a bench trial based on stipulated evidence, the defendant was found guilty of possession of a quantity of cannabis greater than 500 grams with intent to deliver. Defendant’s motion for a new trial was denied.

Prior to imposing sentence, the court heard the State’s argument in aggravation that the defendant had 29,964 grams of cannabis in his possession at the time of his arrest and therefore he was a dealer of narcotics and not just a user. The State sought the maximum sentence based on the quantity of drugs and on defendant’s record of prior felony convictions.

The defense argued in mitigation that, while the defendant when arrested had a large amount of narcotics in his possession, the legislature had failed to make quantity a factor to be considered in aggravation when the court imposes sentence.

The trial judge stated that he considered all the stipulated and physical evidence and defendant’s potential for rehabilitation and sentenced him to a term of six years’ incarceration.

The defendant appeals his sentence, raising as the sole issue on appeal whether the trial court erred in sentencing defendant to a six-year term where it relied in part on his possession of three packages of plant substance which were not chemically analyzed and therefore not proven to contain cannabis.

On July 27, 1987, police officer Pánico stopped the defendant for driving through a red light. When the officer approached the car, the defendant got out. When he was asked to produce his driver’s license, automobile registration or other identification, the defendant was unable to do so.

The officer noticed the smell of marijuana on defendant’s breath and, upon looking into the car, saw two partially burned, hand-rolled cigarettes which the officer recognized as marijuana cigarettes. The defendant was placed under arrest.

As Officer Pánico picked up the cigarettes, he noticed what he recognized as marijuana seeds on the floor of the car. He then searched the car trunk using the keys which were in the ignition. In the trunk he found an open carton containing four cellophane-wrapped packages, one of which was torn. The officer saw plant material spilling out of the tom package and recognized it to be marijuana.

Plant material from the torn package was subsequently tested by the police chemist and found to be cannabis. The stipulated evidence established that the package tested by the chemist contained 7,491 grams of cannabis and that the total contained in all four packages was 29,964 grams. No evidence was offered that the other three packages were chemically tested.

The defendant was charged by information under the Illinois Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56½, par. 705(e)) with possession with intent to deliver of more than 500 grams of cannabis, a Class 2 felony. The term of imprisonment for a Class 2 felony is not less than three nor more than seven years. Ill. Rev. Stat. 1987, ch. 38, par. 1005-8-1(a)(5).

The defendant was found guilty of the crime charged and sentenced to six years’ incarceration. He now appeals this sentence on the ground that the trial judge improperly considered as a factor in aggravation the total weight of all four seized packages of plant material. The defendant argues that in determining sentence the trial judge should have considered only the one package whose contents had been chemically tested and proven to contain cannabis.

In imposing sentence the trial judge considered the presentence investigation report which disclosed two prior felony convictions. The judge also considered the stipulated trial evidence, including all testimony adduced from the defendant and from Officer Pánico at the pretrial hearing on defendant’s motion to suppress, as well as photographs admitted into evidence at trial showing the four packages of plant substance.

The defendant argues that limitations have been placed on the general principle that only random testing on the total amount of narcotics seized need be done for the chemist’s finding to be considered expert opinion as to the whole. He cites People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604, People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127, and People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520, and argues that in all three cases the courts found that in determining severity of the offense it was improper for the court to consider as evidence of the total quantity those portions of the substance seized which were not chemically analyzed. While acknowledging that these cases concerned a determination of the level of offense charged and did not concern sentencing, their findings have equal application to the factors which the trial court here was permitted to consider in determining an appropriate sentence.

The State argues that the evidence disclosed that all four bundles of plant substance were packaged in a similar manner and that the chemical testing was done on one of the four packages. Additionally, the State argues that the chemist’s testimony and conclusions were admitted as stipulated evidence and that this testimony established that the weight of the package of tested substance was 7,491 grams, an amount substantially greater than the 500-gram threshold weight required for defendant’s conviction of a Class 2 felony under the statute.

In addition to the evidence adduced at trial, the trial judge properly considered the presentence report and the arguments of counsel in aggravation and in mitigation as he was required to do. In his argument in mitigation defense counsel alerted the court to the fact that the large amount of narcotics here is not a factor that the court should consider in aggravation. The court did not state that the sentence imposed was based on evidence of 29,964 grams of cannabis rather than on the 7,491 grams tested.

The six-year sentence imposed is less than the statutory maximum for this Class 2 felony. We find that the sentence is not excessive and that the trial court’s judgment and sentence should be affirmed.

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.