author: JUSTICE McLAREN

text:
    SALVADOR VENZOR, Plaintiff, v. CARMEN’S PIZZA CORPORATION, Indiv. and d/b/a Carmen’s of Evanston Plaza, Defendant and Third-Party Plaintiff-Appellee (Manuel Teijeiro, Indiv. and d/b/a Rios Casa Iberia and Santos Enterprises, Third-Party Defendants-Appellants).
    Second District
    No. 2—92—0031
    Opinion filed October 14, 1992.

      Timothy J. Young, Edward F. Ruberry, and Richard H. Nicolaides, Jr., all of Bollinger, Ruberry & Garvey, of Chicago, and Charles W. Smith, of Rosing, Applehans, Smith, Ericksen & Zeit, Ltd., of Waukegan, for appellants.
    Robert Schey, of Robert Schey & Associates, of Chicago, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Salvador Venzor, filed a complaint against defendant Carmen’s Pizza Corporation (Carmen’s) for personal injuries. Carmen’s filed a third-party complaint against third-party defendant, Manuel Teijeiro, for contribution. Carmen’s subsequently settled with plaintiff and then moved to default Teijeiro for failing to appear and plead. The court entered an order granting Carmen’s motion for default judgment and entered judgment in favor of Carmen’s and against Teijeiro in the amount of $100,000 plus costs. Teijeiro moved to vacate this default judgment within 30 days of its issuance pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e)). The trial court denied both Teijeiro’s motion to vacate and Teijeiro’s motion for reconsideration. Teijeiro appeals the trial court’s denial of his section 2 — 1301(e) motion. We reverse and remand for a trial on the merits.

On May 15, 1989, plaintiff, Salvador Venzor, filed a two-count complaint in which he alleged that he sustained injuries on July 3, 1988, when he fell from a refrigerated trailer, at the Taste of Chicago Fair. Plaintiff alleged that the trailer from which he fell was owned by defendant Carmichael Leasing Company (Carmichael) and was in an unreasonably dangerous condition at the time of plaintiff’s alleged injury. Additionally, plaintiff alleged that the trailer he fell from had been leased by Carmen’s and that Carmen’s was negligent in failing to maintain, repair, illuminate and inspect the trailer and in failing to warn plaintiff of the dangerous condition.

On June 5, 1991, Carmen’s filed a third-party action for contribution against the third-party defendant, Manuel Teijeiro. Carmen’s alleged that Teijeiro also had possession and control over the trailer and had a duty to properly maintain it. Substitute service of the summons and third-party complaint was allegedly completed on June 10,1991.

On September 24, 1991, Teijeiro was mailed, via certified mail, a notice of motion for default hearing. This default hearing took place on October 28, 1991, the same date on which the trial of the matter had been set. At that time, the court was advised that plaintiff Venzor had settled with defendants Carmichael and Carmen’s for $100,000. Counsel also appeared on behalf of Teijeiro and sought leave to file an appearance, time to file an answer on behalf of the third-party defendant and a continuance of the trial as to the third-party action. The third-party defense counsel explained that the third-party defendant was unaware of the significance of the summons he had been served. The trial court denied the request of Teijeiro’s counsel and ordered that Carmen’s motion to default be granted. Additionally, the trial court ordered that judgment be entered against Teijeiro in the amount of $100,000.

On November 18, 1991, Teijeiro filed a motion to vacate judgment pursuant to section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e)). In this motion, counsel argued that service of the summons was improper and ineffective and that Teijeiro was unaware of the legal significance of the motion seeking judgment against him and that he does not believe that the third-party plaintiff has a valid cause of action.

On December 9, 1991, the court denied Teijeiro’s motion to quash service finding that a general appearance had been filed previously on his behalf. The court also denied the motion to vacate the default judgment pursuant to section 2 — 1301(e), finding that the motion had not been timely filed. Teijeiro’s motion for reconsideration was denied on January 8,1992.

In order to vacate a default judgment within 30 days of its issuance, a party must make a motion pursuant to section 2— 1301(e) of the Code of Civil Procedure. This section provides as follows:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1301(e).

Our analysis of relevant case law reveals that three standards of review have been used by courts of appeal reviewing trial court rulings under section 2 — 1301(e). The first group of cases asserts that vacation of a default judgment lies within the sound discretion of the trial court and the question on review is whether that discretion has been abused. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392; Day v. Curtin (1989), 192 Ill. App. 3d 251, 254; Salvati v. Pekin Lincoln Mercury, Inc. (1976), 37 Ill. App. 3d 78, 80.

A second body of cases asserts that the question on appeal is not whether the trial court committed an abuse of discretion but whether substantial justice has been done between the parties under the circumstances of the case. Patrick v. Burgess-Norton Manufacturing Co. (1976), 63 Ill. 2d 524, 531; Campbell v. White (1989), 187 Ill. App. 3d 492, 503; Meeker v. Gray (1986), 142 Ill. App. 3d 717, 728; Satcher v. Inland Real Estate Corp. (1983), 116 Ill. App. 3d 685, 687; Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 996; Lettvin v. Suson (1978), 62 Ill. App. 3d 215, 217.

The third body of cases outlines a standard of review which incorporates both of the standards cited above. Essentially, this standard proposes that a trial court has abused its discretion if its ruling on a section 2 — 1301(e) motion fails to promote substantial justice between the parties. People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402 (where the supreme court identifies the overriding consideration in setting aside the default judgment as one which seeks to promote substantial justice and then remands the case because the trial court abused its discretion in this regard); Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 467 (where the discretion of a trial court to vacate the final judgment will not be regarded as an abuse if vacation of that judgment promotes substantial justice); Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 625 (where the court states that a denial of a motion to vacate will not be reversed absent an abuse of discretion the test of which asks whether a party’s fundamental right to justice has been affected); Baltz v. McCormack (1978), 66 Ill. App. 3d 76, 77 (where the court identified the ultimate question of a denied motion to vacate as one which asks whether the trial court properly exercised its discretion in an attempt to serve justice); Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102, 108 (where the court expresses a belief that discretion to vacate a default judgment is properly invoked if it is exercised in the furtherance of justice).

The three supreme court cases cited above, Foutch, Patrick and Adkins, serve as the most compelling authority for our decision. In Foutch, the court determined that the absence of a hearing transcript prevented it from determining whether the trial court had abused its discretion in ruling on a motion to vacate a judgment. However, Patrick implies that an abuse of discretion is not a prerequisite to an appellate court’s reversal of a denial to vacate a default judgment. The Patrick court cites the following language in Adkins in support of this proposition:

“As we said in People ex rel. Reid v. Adkins, 48 Ill. 2d 402, ‘The overriding consideration now is whether or not substantial [justice] is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits.’ (48 Ill. 2d 402, 406.)” (Patrick, 63 Ill. 2d at 531-32.)

We do not dispute the precedential value of Patrick. However, in our view, the Adkins case indicates that, while the denial of substantial justice is an important factor to consider, the actual standard of review is defined as an exercise of discretion. Our reasoning for this interpretation is based upon the unambiguous language in Adkins that “the trial court abused its discretion in failing to set aside its order.” Adkins, 48 Ill. 2d at 407.

In light of these cases, we conclude that a trial court’s refusal to vacate a default judgment may be reversed because of a denial of substantial justice or because of an abuse of discretion.

In the present case, we hold that the court failed in both of these respects. First, the court’s ruling failed to promote substantial justice. Factors to consider in determining whether substantial justice has been served include the severity of the penalty to defendant as a result of the default judgment, and the attendant hardship on plaintiff if plaintiff is required to proceed to a trial on the merits. Campbell, 187 Ill. App. 3d at 503.

The following language from Widieus provides further insight into these factors:

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors [sic\. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more ( than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.” Widicus, 26 Ill. App. 2d at 108-09.

In the present case, Carmen’s argues that Teijeiro failed to provide the trial court with any excuse as to why he failed to timely appear and defend the third-party action and that he further failed to provide the trial court with any factual basis in support of his claim that defenses against the third-party complaint existed.

We determine that these arguments fail to support the default judgment entered below in light of the considerations stated in Widieus. First, Teijeiro explains that he failed to respond to the summons as a result of his ignorance as to its significance. This is, admittedly, a poor excuse for his inaction. However, we cannot say that he should be saddled with a $100,000 default judgment as a result of this ignorance. Moreover, the amount of this default judgment has not been determined through any evidentiary proceeding as to either damages or comparative negligence. Thus, the court’s order would force Teijeiro to pay an amount which resulted from a settlement in which he took no part. We fail to see how justice demands Teijeiro pay such an amount for his default, particularly where no evidence has been presented indicating that his failure to respond to the summons amounted to a contumacious flouting of judicial authority, or amounted to an attempt to elude service. (See Matter v. Quesnell (1985), 133 Ill. App. 3d 388.) In addition, we see nothing in the record to indicate that Teijeiro’s counsel lacked diligence to such an extent as to warrant a default judgment. Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 659-60.

The second element of Carmen’s’ argument that Teijeiro lacked a meritorious defense must also fail because it is no longer necessary that section 2 — 1301(e) relief be sought on the ground that there is a meritorious defense. (Adkins, 48 Ill. 2d at 406.) Furthermore, Carmen’s conspicuously fails to present an argument as to how it would be subject to hardship should it be required to have the matter determined on the merits. Based on the record before us, we do not believe that there is one. Therefore, applying the reasoning in Widicus, the default judgment should and must be set aside. The argument presented by Carmen’s does not outweigh the central policy consideration stated in Widicus favoring a trial on the merits.

Second, the trial court’s refusal to vacate the default judgment amounted to an abuse of its discretion. A circuit court has abused its discretion when it acts arbitrarily -without the employment of conscientious judgment or if its decision exceeds the bounds of reason and ignores principles of law such that substantial prejudice has resulted. (Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 594-95.) If reasonable persons could differ as to the propriety of the trial court’s actions, then the trial court cannot be said to have exceeded its discretion. Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334-35.

In the present case, the trial court has entered a default judgment in the amount of $100,000. The effect of this judgment is to completely indemnify an alleged joint tort-feasor without any showing of fault or fault allocation. No reasonable person could agree, under the circumstances of this case, that Teijeiro should be saddled with such a responsibility. Moreover, judicial procedures should not be used as a means to obtain “no-cost” liability insurance coverage.

As a final matter we note that, in denying Teijeiro’s motion to vacate the default judgment, the trial court found that the motion had not been timely filed. We cannot agree with this finding. Section 2 — 1301(e) allows a party 30 days within which to make a motion to vacate a default judgment. In the present case, Teijeiro moved to vacate the default judgment 21 days after its entry. Therefore, the motion, was timely filed.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

INGLIS, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARNELL WILLIS, Defendant-Appellant.
    Fourth District
    No. 4—91—0925
    Opinion filed October 8, 1992.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Leonard, State’s Attorney, of Mt. Sterling (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a bench trial in Brown County on March 15, 1991, defendant, Carnell Willis, and his codefendant, Theron Jackson, were convicted of mob action. (Ill. Rev. Stat. 1989, ch. 38, par. 25 — 1(a)(2).) Defendant was sentenced to four years’ imprisonment. He appeals his conviction, arguing: (1) defense counsel was ineffective because he did not comply with the requirements of section 3 — 8—10 of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10), entitled “Intrastate Detainers,” thereby defeating dismissal of the charge against him based on denial of his right to a speedy trial; and (2) the State committed reversible error by cross-examining defendant about whether he had a drug problem and past arrests. Defendant appeals his sentence, arguing the trial judge improperly considered a facsimile (fax) of his prison disciplinary record as an aggravating factor in sentencing. He also contends the trial judge’s sentence was not sufficiently specific because it did not designate the sentence to which the imposed sentence was made consecutive. We affirm defendant’s conviction and remand only for clarification of which sentence the mob action conviction sentence is made consecutive.

I. Facts

A. Defense Counsel’s Pretrial Actions

The offense of which defendant was convicted arose from an attack on Gregory Pope, another inmate in the Western Illinois Correctional facility. Defendant was charged by information on March 15, 1991. On April 14, 1991, defense counsel was appointed to represent defendant. On April 15, defense counsel filed a motion for a speedy trial pursuant to section 103 — 5 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5).

On September 12, 1991, defense counsel filed a motion to dismiss because more than 160 days had elapsed since the State charged defendant. The court denied the motion, ruling that when the defendant is in a Department of Corrections (DOC) facility, the procedures listed in the intrastate detainers provision must be followed in order to preserve a speedy-trial issue.

B. Trial Testimony

Pope testified he met defendant, codefendant Jackson, and the inmate who struck him, Terrance Davis, a few days before the incident. Pope was being extorted by inmate Lee Johnson. Defendant, Jackson, and Davis approached Pope and told him they could protect him from Johnson. Pope stated defendant, Jackson, and Davis gave him a commissary list on three occasions and ordered him to obtain the items listed. They warned if he did not obtain the items he would get hurt.

On the day the incident occurred, defendant, Jackson and Davis followed Pope into his cell after dinner. Pope had notified prison officials of Johnson’s extortion attempt and the officials agreed to move him to another cell. When defendant, Jackson, and Davis noticed Pope’s things were packed, they called him a “stool pigeon” and said “stooling” was not tolerated in prison. According to Pope, defendant told Davis to “bring the G down” and Davis hit Pope twice in the face.

Randy Spertzel, an inmate and Pope’s friend, testified he saw three men in Pope’s cell the night of the attack. The men told Spert-zel to leave them alone. Later that night, defendant came to Spert-zel’s cell and told Spertzel if he said anything they would put “a hit” out on him.

After Davis struck Pope, the men gave him an aspirin and discouraged him from going to the infirmary. They ultimately allowed him to seek medical treatment, but told him he would be hurt if he did not report that he fell and hurt his face. He required surgical placement of metal plates and screws in his head.

Prison official Marty Winston interviewed Pope in the prison health unit shortly after the incident. Pope told Winston the cell numbers of the men involved. Pope also identified defendant, Jackson, and Davis from a six-photograph array.

Davis, who pleaded guilty to aggravated battery for striking Pope, testified that when he entered Pope’s cell, defendant and Jackson were present. Davis asked Pope what he told the prison officials about Johnson. When Pope admitted he told the officials about Johnson’s extortion, Davis hit Pope in the face. Davis testified neither defendant nor Jackson told him to strike Pope.

Defendant’s and Jackson’s testimony supported Davis’ testimony. Defendant testified he did not know Davis was going to strike Pope and that he and Jackson broke up the fight. During cross-examination, the State asked defendant if he had a drug problem. Defendant stated he had no drug problem. Over defense counsel’s objection, the trial judge permitted the State to question defendant about past drug arrests. After defendant admitted three drug-related arrests, defendant conceded he had also received a six-year term for delivery of controlled substances. Although the State tried to question defendant about an additional six-year term he was allegedly serving for delivery of controlled substances, defendant denied he was currently serving a 12-year term.

C. Sentencing Hearing

During the December 11, 1991, sentencing hearing, the State presented testimony by William Parker, a correctional officer at the Western Illinois Correctional Center. Parker obtained a fax of defendant’s prison disciplinary record from the Pontiac Correctional Center. The record indicated that during his incarceration, defendant had received 24 disciplinary reports. Seven of these infractions were major. The trial judge admitted this report over defense counsel’s objections and permitted it to be used as an aggravating factor in defendant’s sentencing.

II. Analysis

A. Ineffective Counsel

Defendant argues defense counsel was ineffective in his efforts to ensure defendant received a speedy trial because counsel filed the motion demanding speedy trial pursuant to section 103 — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a)), rather than the provision applicable to inmates during incarceration, a proper demand under which requires the defendant be tried within 160 days (Ill. Rev. Stat. 1989, ch. 38, par. 1003-8-10).

Resolution of defendant’s speedy-trial issue requires consideration of the speedy-trial provision of the Code in conjunction with the intrastate detainers provision. Section 103 — 5(a) of the Code states, in relevant part, every person in custody in the State for an alleged offense shall be tried within 120 days from the date he was taken into custody. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Section 103 — 5(b) of the Code provides that persons on bail or recognizance shall be tried within 160 days from the date defendant demands a trial. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) Unless the delay is caused by defendant, failure to try him within the statutory time is cause for the discharge of the accused. Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(d).

Section 3 — 8—10 of the Unified Code makes section 103 — 5(b) of the Code applicable to defendants “committed to any institution or facility or program of [DOC]” who have any untried complaints or indictments pending against them. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) Defendant was in DOC custody when this mob action charge was filed against him. Defense counsel was therefore required to file a speedy-trial demand pursuant to section 3 — 8—10 of the Unified Code and include a statement of the place of present commitment, the term, and length of remaining term, charges pending against defendant, and the county where the charges were lodged, addressed to the State’s Attorney of the county where he is charged, with a copy to the clerk of the court and the proper DOC officer of the facility to which defendant is committed. The State’s Attorney would then have been required to ensure defendant was brought to trial within 160 days of the demand. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) However, because defense counsel requested a speedy trial for defendant pursuant to section 103 — 5 of the Code, the 160-day period never began to run.

The State contends defense counsel was not ineffective because the mob action charge against defendant would not have been dismissed even if the appropriate speedy-trial demand had been made under the intrastate detainers provision (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10). If a proper demand under section 3 — 8—10 of the Unified Code had been made, the State would simply have tried defendant within the requisite 160 days.

To establish counsel was ineffective, defendant must show counsel’s representation fell below an objective standard of reasonableness and it is reasonably probable that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687-88, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068; People v. Horton (1991), 143 Ill. 2d 11, 23, 570 N.E.2d 320, 325; People v. Jackson (1987), 162 Ill. App. 3d 476, 482, 515 N.E.2d 390, 394.

The State directs us to this court’s ruling in People v. Keys (1990), 195 Ill. App. 3d 370, 375-76, 552 N.E.2d 285, 289, in arguing defense counsel’s action did not fall below an objective standard of reasonableness because defendant did not instruct his attorney to demand a speedy trial and because the decision on whether to demand a speedy trial is a strategic matter left for defense counsel.

Our ruling in Keys is inapplicable to the present scenario. There, defendant requested that the matter be resolved as soon as possible but made no specific request for a speedy-trial demand, and defense counsel explained his reasons for not filing a speedy-trial demand. (Keys, 195 Ill. App. 3d at 371-72, 552 N.E.2d at 286-87.) Although whether to demand a speedy trial may be a strategic decision, defense counsel in the present case intended to demand a speedy trial on behalf of defendant, but did so incorrectly.

Defense counsel maintains when he filed the motion he did not know defendant was incarcerated in the State penitentiary. The record available to defense counsel indicated defendant was incarcerated in a DOC facility. The notice counsel received that he had been appointed to represent defendant indicated a copy was also sent to defendant and to DOC. The State’s Attorney’s April 4, 1991, writ of habeas corpus summoning defendant to testify was sent to the warden at Pontiac Correctional Center. The order of continuance noted a copy went to defendant and to DOC. Defense counsel filed the speedy-trial motion on April 15, 1991. The record already included these indications defendant was in DOC custody.

Defendant correctly notes that by the preliminary hearing held on April 29, 1991, defense counsel knew defendant was an inmate. Testimony at the hearing included an account of what allegedly occurred between the inmates when Pope was injured. As a defense attorney, defense counsel had a duty to represent defendant competently. Competence requires the legal skill, knowledge, thoroughness and preparation reasonably necessary for the representation. (134 Ill. 2d R. 1.1(a).) The intrastate detainers provision became law effective November 13, 1973. See Pub. Act 78-939, §1, eff. Nov. 14, 1973 (1973 Ill. Laws 3023, 3032).

In People v. Davis (1981), 92 Ill. App. 3d 869, 874, 416 N.E.2d 85, 88, the court stated:

“The statutory speedy trial scheme provides that a person in custody must be tried within 120 days (section 103 — 5(a)); persons on bail or recognizance (section 103 — 5(b)) and persons who have been committed to the Department of Corrections for other offenses (section 3 — 8—10) must be tried within 160 days of their demand for trial. Those persons imprisoned in another State against whom a detainer has been lodged must be brought to trial within 180 days after making demand for trial. (Section 1003 — 8—9, art. III(a).) We note too that a prisoner’s right to a speedy trial under the Federal Speedy Trial Act (18 U.S.C.A. §3161(j) (Supp. 1980)) also requires a demand for trial. United States v. Bryant (4th Cir. 1979), 612 F.2d 806, 811.
As defendant failed to comply with the terms of the intrastate detainer statute to which she was subject the trial court erred in granting her motion for discharge.”

There, the defendant was committed to DOC on a Cook County judgment, and the trial court granted a motion for discharge and dismissed pending Du Page County charges pursuant to section 103 — 5(a) of the Code, although no speedy-trial demand under section 3 — 8—10 of the Unified Code had been made. The Second District Appellate Court reversed that judgment. See generally 5 L. Pieczynski, Illinois Practice §10.3, at 274 (statutory right to a speedy trial); §10.24, at 285-86 (intrastate detainer act) (1989).

Defense counsel should have known that section 3 — 8—10 of the Unified Code governed defendant’s right to a speedy trial. His actions in this case with respect to the speedy-trial motion fell below a reasonably competent standard.

To conclude defense counsel’s conduct rose to the level of incompetency requiring reversal of the conviction, however, also requires a finding it is reasonably probable the outcome of the proceeding against defendant would have been different had defense counsel acted competently. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Horton, 143 Ill. 2d at 23, 570 N.E.2d at 325; Jackson, 162 Ill. App. 3d at 482, 515 N.E.2d at 394.

The State contends even if counsel was ineffective, the error was harmless because the evidence presented against defendant was overwhelming. This argument has nothing to do with a claim of ineffective assistance of counsel, which allegedly violated defendant’s statutory right to a speedy trial.

Defendant was incarcerated for 210 days between the date defense counsel filed the speedy-trial motion and the date of trial. Defendant should have been tried within 160 days. (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10.) The record does not indicate any reason for the delay. Although the State may have had no legal duty to bring defendant to trial where it relied on a State law that required defendant to make a proper demand for trial (Jackson, 162 Ill. App. 3d at 480, 515 N.E.2d at 393), neither should it evade a defendant’s right to a speedy trial. (Cf. People v. Fosdick (1967), 36 Ill. 2d 524, 528, 224 N.E.2d 242, 245 (use of voluntary dismissal without notice to defendant).) The record indicates it did so in this case.

The State’s brief contains the following concession:

“[The] State’s Attorney *** was clearly apprised that the speedy trial was controlled by the Intrastate Detainer Act and that this 160-day period could not begin to run unless the formal requirements of section 3 — 8—10 were fulfilled. Had [defense counsel] refiled under the controlling statutory provision and preserved defendant’s speedy trial request, it is much more than probable that [the State] would have brought the case to trial within the 160-day period.”

The State made a similar argument during the hearing on the motion to dismiss the charges against defendant. The State’s Attorney stipulated there was no mechanical reason, no “court-clogging” reason, that prevented the case from being brought to trial within the requisite 160 days. It was not tried within this time period because the “requisite conditions to commence the running of the 160-day period were not satisfied.” The prosecutor here is not contending the press of duties prevented proper preparation of the case or that witnesses were unavailable. He does not suggest other cases with proper speedy-trial demands preempted this defendant’s case from being brought to trial. He does not assert he was understaffed or over-burdened. We commend the prosecutor on his candor, but not his practice. The State simply relied on defense counsel’s error in failing to set defendant’s trial within 160 days.

The prosecutor is an administrator of justice and an advocate who must exercise sound discretion in the performance of his or her functions. (ABA Standards, Criminal Justice §3 — 1.1 (2d ed. Supp. 1986).) We question the exercise of that discretion in this case. A prosecutor should not intentionally use procedural devices to support delay when there is no legitimate basis. (ABA Standards, Criminal Justice §3— 2.9(a) (2d ed. Supp. 1986).) The State’s Attorney knew defendant was incarcerated in DOC. The State’s brief indicates defendant’s trial was not delayed because of case backlog. Rather, the State’s Attorney did not try defendant within the mandatory 160 days because he knew defense counsel’s speedy-trial demand was in improper form. This was an inappropriate reliance on the procedural requirements of the intrastate detainers provision, particularly when the information that would have been contained in a proper demand was already known to the prosecutor.

However, the record does not support the conclusion that if defense counsel had filed the appropriate speedy-trial demand the State still would not have brought defendant to trial within 160 days. We cannot presume the State would not have prosecuted defendant within the required time. We simply do not know what would have happened had defense counsel filed a proper intrastate detainers motion. Based on the evidence, defendant cannot meet the second prong of Strickland, i.e., a reasonable probability that but for his counsel’s error in preparing the speedy-trial demand, the result of the proceeding would have been different. Despite this inadequacy in legal representation by defense counsel, and conduct by the State’s Attorney which was imprudent for one in that position, we are not bound to reverse defendant’s conviction on this issue.

Defense counsel should competently prepare their cases. Criminal defendants have a right to adequate representation to ensure their statutory, as well as constitutional, rights are protected. Prosecutors should proceed with trial in a timely manner. If counsel in this case properly carried out their duties, defendant would have been timely prosecuted and would have had no timeliness complaint to raise on appeal. In addition, the lawyers in this case provide reason for defendants and the public to be suspect when dealing with members of the legal profession. Both prosecution and defense have obligations to their clients to advance justice and promote faith in the process. Neither goal is achieved by the examples set in this case.

B. Improper Cross-Examination

Defendant argues the State committed reversible error when it improperly cross-examined him on whether he had a drug problem without ever supporting that point with proof. He also argues error occurred when the State cross-examined him about past drug-related arrests. He contends this was improper impeachment because it did not show he had a problem with drugs nor was it related in any way to the mob action charge. The State did not prove the arrests or convictions with any documentary evidence, or show defendant was convicted of all the arrests the prosecutor cited.

The cross-examination was as follows:

“Q. [By prosecutor]: You have got a little problem with drugs, haven’t you, Mr. Willis?
A. I wouldn’t say so.
Q. You wouldn’t?
A. No. I wouldn’t.
Q. Arrested by the Chicago P.D. on January 10 of 1983 for Possession of Cannabis?
A. Yes.
Q. Arrested by Chicago P.D. on June of Possession of Cannabis?
MR. BRENNER: Objection to this impeachment. He’s going with arrests rather than felony convictions or crimes of dishonesty.”

The trial judge permitted the cross-examination to proceed based on the State’s reasoning, i.e., because defendant had denied he had a drug problem, the State could attempt to impeach his testimony by eliciting evidence suggesting he had been a drug user.

“Q. So in addition to your arrests for cannabis in -83 and -84, [defendant], you were also arrested in September ’85 by the Chicago Police Department for Possession of Cannabis; isn’t that correct?
A. Yes.
Q. And since then you were sentenced to six years for Delivery of Controlled Substances in 1988; is that correct?
A. Yes, it is.
Q. And you also got another six-year sentence for Delivery of Controlled Substances, didn’t you?
A. No, I didn’t. I get three. I got — Wait a minute. No I only got one six-year sentence. I don’t understand what you—
Q. You are not serving a 12-year term right now?
A. No. No, I am not.”

The State concedes the prosecutor’s cross-examination of defendant Willis about past drug-related arrests was improper, but contends the error was rendered harmless by the evidence of defendant’s guilt and the cumulative nature of the testimony elicited. As to the cross-examination on past drug-related convictions, the State contends it was not cross-examining defendant under the method afforded by the rule allowing impeachment by introduction of conviction records. Rather than seeking to prove the fact of the drug convictions, the State maintains it was attempting to elicit evidence suggesting defendant was a drug user. The State argues defendant’s admission he had been sentenced on two drug charges established he was a drug user without the prosecutor furnishing records or authenticated copies of the convictions, and written proof was not necessary. It also argues defendant has waived review of these matters.

Defendant responds that when asked whether he had a drug problem, he denied it. He contends neither drug-related arrests nor sentences proved he had a drug problem or used drugs. He also argues the State did not use his drug-related convictions to prove he had used drugs. Instead, the prosecutor claimed in closing that defendant had admitted he had a drug problem and suggested defendant tried to conceal this problem from the court.

1. Waiver

To preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. McCarthy (1991), 213 Ill. App. 3d 873, 884, 572 N.E.2d 1219, 1226.) Here defendant’s trial objection was addressed to one point, the impeachment by arrests. All other aspects of defendant’s argument have been waived by virtue of the failure to object at trial. All grounds have been waived by the failure to include them in a post-trial motion. It is elemental that the admission of evidence cannot be assigned as error if no objection is made. (People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 239.) In addition, a specific objection waives all grounds not specified. People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419; see M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.2, at 5-7 (5th ed. 1990).

2. Consideration on the Merits

Defendant argues these matters destroyed his credibility and affected the outcome of his trial. (See 134 Ill. 2d R. 615(a).) He directs us to the trial judge’s comment before pronouncing judgment that the case presented a question of credibility. The case necessarily presented a credibility issue. Defendant’s witnesses were himself, code-fendant Jackson, and Davis, who had pleaded guilty to the aggravated battery of Pope; the testimony of defendant and Jackson could reasonably be viewed as self-serving, and Davis had nothing to lose by testifying on behalf of defendant and codefendant Jackson, since he had already been sentenced. By contrast, the victim and the other witnesses who identified defendant and codefendant Jackson, and whose testimony intimated defendant and codefendant Jackson had ordered the attack on Pope, had nothing to gain by their testimony and had no motive or reason to lie.

The cross-examination on whether defendant had previously been arrested was improper. Defendant’s objection should have been sustained. “[I]t is fundamental that mere proof of an individual’s arrest cannot be used against that individual in a criminal case since the evidence of an arrest would prejudice the defendant in the eyes of the jurors. (People v. Bennett (1953), 413 Ill. 601[, 110 N.E.2d 175].” (People v. Lampkin (1983), 98 Ill. 2d 418, 430, 457 N.E.2d 50, 56.) Evidence which suggests a defendant committed crimes other than the one charged is generally inadmissible unless relevant to some issue in the case. People v. Herrett (1990), 137 Ill. 2d 195, 207, 561 N.E.2d 1, 6; People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.

Likewise, the rule has been stated it is improper to cross-examine a defendant about a conviction for a crime. (See, e.g., People v. Flynn (1956), 8 Ill. 2d 116, 120, 133 N.E.2d 257, 259; People v. Adams (1982), 106 Ill. App. 3d 467, 472, 435 N.E.2d 1203, 1207.) The proper method for impeaching a defendant’s credibility is by means of the record of conviction or an authenticated copy thereof. (See People v. Madison (1974), 56 Ill. 2d 476, 488, 309 N.E.2d 11, 18.) An exception to the rule permits cross-examining a defendant about convictions when he has testified about his prior convictions on direct examination. (People v. Johnson (1990), 206 Ill. App. 3d 318, 322, 564 N.E.2d 232, 235.) Cross-examination of a defendant about a prior conviction is improper where direct examination has not covered the subject. Adams, 106 Ill. App. 3d at 472, 435 N.E.2d at 1207.

Nevertheless, reversible error does not result unless the error has deprived defendant of substantial justice or influenced the determination of his guilt. (Madison, 56 Ill. 2d at 488-89, 309 N.E.2d at 18; Adams, 106 Ill. App. 3d at 472, 435 N.E.2d at 1207.) We note that Adams and other cases cited on this point arose in the context of jury trials. As stated in Madison, this rule is founded upon the possibility that a defendant might be prejudiced during a jury trial if he is forced to testify concerning prior convictions. (Madison, 56 Ill. 2d at 488, 309 N.E.2d at 18.) This case was a bench trial with the circuit judge sitting as trier of fact.

As to the cross-examination on whether defendant had a drug problem, or the suggestion of drug use, it is under limited circumstances that drug use may be relevant to impeach a -witness’ ability to observe, or narcotics addiction to undermine a witness’ credibility (see People v. Smith (1968), 41 Ill. 2d 158, 161, 242 N.E.2d 198, 200). (See generally 6 L. Pieczynski, Illinois Practice §22.64, at 48 (1989); R. Hunter, Trial Handbook for Illinois Lawyers, Criminal §40.16, at 547-49 (6th ed. 1989).) We fail to see how any of these or other circumstances made this evidence relevant to this case. Here, no objection was made below which would have permitted the trial court an opportunity to rule on the admissibility or lack of relevance of this evidence, nor was a motion to strike made when no proof of drug use or a drug problem was presented. Neither was an objection made to the prosecutor’s comment, albeit erroneous, in closing argument.

In a bench trial, it is presumed the court considered only competent and proper evidence in reaching its decision. (People v. Nuccio (1969), 43 Ill. 2d 375, 394, 253 N.E.2d 353, 363.) This presumption is negated when the trial court admits improper evidence over defendant’s objection and the record shows it was improperly considered, as in the case cited by defendant, People v. Alford (1982), 111 Ill. App. 3d 741, 744, 444 N.E.2d 576, 579. Unlike Alford, here only the impeachment by arrests was objected to and nothing in the record suggests the trial court gave this or the other evidence now complained of any consideration. There was sufficient proper evidence to sustain the conviction and the evidence was not so closely balanced to require a new trial.

C. Facsimile as Evidence at Sentencing

Defendant argues that before imposing sentence, the trial court should not have considered a fax of his prison disciplinary reports as an aggravating factor. He contends the State failed to establish a proper foundation for admission because it did not establish firsthand knowledge of the reported incidents. He directs us to the Illinois Supreme Court ruling in People v. Smith (1990), 141 Ill. 2d 40, 73, 565 N.E.2d 900, 914. The Smith court ruled prison incident reports are not admissible at a trial. (Smith, 141 Ill. 2d at 78-79, 565 N.E.2d at 917.) Evidence at the sentencing stage was not at issue.

At the sentencing stage, the trial judge is not limited to information which would be admissible at the trial stage. The judge must ensure the information is accurate and not allow the information to prejudice the proceedings. However, he is not restricted to evidence which establishes guilt. Any evidence, within reasonable bounds, which tends to aggravate or mitigate the appropriate sentence can be considered. People v. Adkins (1968), 41 Ill. 2d 297, 300-01, 242 N.E.2d 258, 260.

Parker testified he obtained the disciplinary records from Pontiac Correctional Center, the facility to which defendant had been transferred. Defendant provides no specifics as to why the reports should have been viewed as inaccurate or unreliable.

Defendant also argues if proper foundation were laid for admission of the fax, it was still inadmissible because the violations had not resulted in “convictions.” He relies on People v. Thomas (1983), 111 Ill. App. 3d 451, 454, 444 N.E.2d 288, 290, in which this court ruled a presentence report which listed only arrests, and not convictions, was not admissible. He also contends the evidence in his case was similar to evidence ruled inappropriate in the Fifth District Appellate Court ruling in People v. Hoga (1982), 109 Ill. App. 3d 258, 264, 440 N.E.2d 411, 415.

The State does not counter defendant’s reliance on the above two cases. It instead relies on an earlier Illinois Supreme Court ruling in People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344. It directs us to the following language in La Pointe:

“Whether a defendant had been prosecuted and convicted for other misconduct, proof of which is offered at a sentencing hearing, is not, in our judgment, controlling as to its admissibility. More important are the questions of relevancy and accuracy of the information submitted. Those questions are, of course, initially determined by the trial judge in the exercise of an informed discretion.” La Pointe, 88 Ill. 2d at 498, 431 N.E.2d at 351.

Although the La Pointe court’s approval of testimony about prior criminal conduct was admitted, in relevant part, because a witness testified about this conduct and was subject to cross-examination, we do not view its reasoning controlling in this case. La Pointe, 88 Ill. 2d at 498, 431 N.E.2d at 351.

The La Pointe ruling, this court’s previous ruling in Thomas (111 Ill. App. 3d at 454, 444 N.E.2d at 290), and the Hoga ruling (109 Ill. App. 3d at 264, 440 N.E.2d at 415), all addressed the admission of prior arrest records in the absence of any direct testimony to corroborate the alleged conduct.

Defendant compares a record of prison disciplinary charges to a report of previous arrests. The prison disciplinary reports appeared trustworthy and accurate. Defendant did not indicate he attempted to appeal the allegations.

The State prison disciplinary reports were relevant to the appropriate sentence defendant should receive because they were related to the likelihood he would commit other offenses. Defendant aptly notes his previous disciplinary charges played a role in the trial judge’s sentencing decision. Defendant received a four-year term while his code-fendant, who had only minor disciplinary infractions, received 18 months.

Although there were additional reasons the trial judge could reasonably have sentenced defendant to a longer term than that imposed on his codefendant, the trial judge did not abuse his discretion by considering the disciplinary infractions. Defendant’s participation in the attack on Pope represented his disregard for, among other things, the safety of fellow inmates. His additional previous disciplinary infractions were relevant to his rehabilitative potential.

D. Insufficient Explanation of Sentence

Defendant next argues the trial court erred by not identifying the sentence to which his mob action sentence was made consecutive. After sentencing defendant to 12 years’ imprisonment, the trial judge stated, “[t]he sentence[s], of course, Mr. Leonard, are consecutive sentences to what they are now serving with the [DOC] with the State of Illinois.”

The State concedes the trial judge erred by not specifically identifying which sentence(s) the mob action sentence would follow. We agree the trial judge’s error requires the case be remanded for further clarification. A sentence must be specific so it does not require additional construction. People v. Freeman (1981), 95 Ill. App. 3d 297, 301, 420 N.E.2d 163, 166; People v. Logan (1974), 23 Ill. App. 3d 41, 42, 318 N.E.2d 94, 95-96.

Defendant’s case must be remanded for the limited purpose of allowing the trial judge to state with particularity the sentence(s) to which the sentence in this case is to be consecutive.

Affirmed and remanded with directions.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY D. COZART, Defendant-Appellant.
    Second District
    No. 2—90—1213
    Opinion filed October 8, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Jerry D. Cozart, appeals from his conviction of possession of a stolen motor vehicle (Ill. Rev. Stat. 1989, ch. 951/2, par. 4— 103(a)(1)). He contends on appeal that (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court erred when it refused to instruct the jury on the essential elements of the offense of theft.

On May 8, 1990, the defendant was charged with possession of a stolen motor vehicle. The indictment charged:

“On or about March 23, 1990, Jerry D. Cozart committed the offense of unlawful possession of a stolen motor vehicle, a Class 2 felony, in violation of Chapter 95½, Section 4 — 103(a)(1), of the Illinois Revised Statutes, as amended, in that the defendant, being a person not entitled to the possession of a 1984 Ford, VIN number 1FABP0143EW17879, possessed said vehicle knowing it to have been stolen.”

The defendant pled not guilty and proceeded to a jury trial. At trial, Darla Walker testified that in March 1990 she lived in Elgin and she owned a 1984 Ford Escort. Late on March 22, 1990, Darla went to a tavern called Lee’s or Douglas Tap in Elgin. Darla and her girlfriend, Freddie Mae, had been drinking prior to the stop. Darla had drunk approximately 24 beers since 2 p.m. that day. When she left the tavern, she backed her car into a brick wall near the parking lot of the tavern. It was at this point that the defendant, known only by his first name to Darla, entered Darla’s car and proceeded to drive it. According to Darla, the defendant may have decided to drive when he saw her hit the wall.

Darla testified that the defendant drove to Hanover Park, a town with which Darla was not familiar. Defendant pulled into an apartment complex parking lot and told Darla to get out of the car. When Darla refused, defendant hit her in the eye with his open hand. Darla exited the car. Defendant drove away with Darla’s purse still in the car.

About 1:30 a.m., March 23, Darla placed a call to the Hanover Park police from a pay telephone in a tavern parking lot. Officer Timothy Podlin responded to a dispatch and travelled to the tavern parking lot after the telephone call was traced to that location. Podlin described Darla as “obviously intoxicated” and testified that she was clumsy, slow, somewhat confused and incoherent. Darla was unable to give the officer her address, but did make a telephone call to her aunt to get a ride home. Darla never told him that the man driving her car had hit her. However, Darla did relate that she could not get home, that she had been in an accident, that a man had gotten into the car with her and driven her to Hanover Park and then left her there, and that she was lost. Podlin testified that he knew that Darla’s car had been taken, but could not tell from her statements whether it was against her will.

Police officer John Demmin stopped defendant, who was driving Darla’s car at about 1 a.m. on March 23, 1990. The stop took place about one block from Douglas Tap. The defendant was arrested, and, during an inventory search, Darla Walker’s purse was found.

About 3:30 a.m., police contacted Darla Walker about her car. She arranged to go to the police station in the morning. There, she talked with Detective Barnes of the Elgin police department. Darla did not appear intoxicated. According to Barnes, Darla did not relate that she told the defendant to get out of the car, but she did say that the defendant told her to get out and struck her on the face. Neither Officer Podlin nor Detective Barnes noticed any bruises on Darla’s face.

In both opening and closing arguments, the defense presented a theory that the defendant took the car, but did not intend to permanently deprive Darla Walker of the car. In support of that assertion, the defense pointed to the fact that the defendant took the car back to the area where he and Darla had first met, an area near a bar which the defendant frequented. The defense further asserted Darla’s lack of credibility given her extreme state of intoxication at the time of the alleged crime and pointed out that it was implausible that the defendant would steal a car from someone who could identify him.

We will first address defendant’s contention that the trial court erred in refusing three instructions offered by the defendant. The first read:

“In order to find Jerry Cozart guilty of Unlawful Possession of a Stolen Motor Vehicle, you must find that the State has proven beyond a reasonable doubt the following two propositions.
First: Jerry Cozart exerted unauthorized control over the motor vehicle of Darla Walker, and
Second: Jerry Cozart intended or knowingly exerted control of the motor vehicle in such a manner as to permanently deprive Darla Walker of its use and benefit.”

The second instruction read:

“The phrase ‘exerts control’ includes, but is not limited to, the taking of or possession of property.”

The third instruction read:

“The phrase ‘permanently deprive’ means to
1. defeat all recovery of the property by the owner;
or
2. deprive the owner permanently of the beneficial use of the property;
or
3. retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return;
or
4. sell, give, pledge, or otherwise transfer any interest in the property or subject it to the claim of a person other than the owner.”

The trial court refused these instructions on the ground that the issue of intent to deprive permanently was not involved in a charge of possession of a stolen motor vehicle. The judge questioned whether there was an instruction to define the word “stolen,” but added that the definition of “stolen property” (Ill. Rev. Stat. 1989, ch. 38, par. 15 — 6) would only confuse the jurors by adding the issue of whether a theft occurred. That section defines “stolen property” in terms of its use in the Criminal Code. “ ‘[Sjtolen property’ means property over which control has been obtained by theft.” Ill. Rev. Stat. 1989, ch. 38, par. 15 — 6.

The offense of possession of a stolen motor vehicle requires that the State prove that the defendant possessed a vehicle; that he was not entitled to possession of the vehicle; and that the defendant knew that the vehicle was stolen. (Illinois Pattern Jury Instructions, Criminal, No. 23.15 (2d ed. 1981) (hereinafter IPI Criminal 2d).) The defense in this case was based on a theory that the evidence only showed that the defendant took the car, but that either the car was taken with the permission of the driver or, at worst, that the defendant took the car for a joyride. Therefore, the defendant argues that, under the facts of this case where it was the defendant who took the car, in order for the jury to find that he possessed the car knowing it to have been stolen, the jury would first have to find that in fact the defendant had stolen the car.

A person may be charged with possession of a stolen motor vehicle even if he is the one who has stolen it. In such a case, defendant would have to know he had stolen the vehicle, that is, he would have to have stolen it before he could be found guilty. (People v. Cramer (1981), 85 Ill. 2d 92, 100.) In Cramer, the defendant was charged with theft of a truck. The defendant admitted he drove the truck, but there was some evidence presented that he intended to return the truck. On appeal, he argued that he was entitled to an instruction on possession of a stolen motor vehicle as a lesser included offense of theft. The court rejected this argument and held that the instruction was properly refused, reasoning that the word “stolen” in the charge of possession of a stolen motor vehicle referred to a “theft” and therefore facts on which a jury could find him guilty of possession of a stolen motor vehicle were the same facts as necessary to convict him of theft.

In People v. Bivens (1987), 156 Ill. App. 3d 222, 230, the court considered an argument that a defendant who had been convicted of possession of a stolen motor vehicle had not been proved guilty beyond a reasonable doubt. The court held that the evidence was insufficient to prove beyond a reasonable doubt that defendant exerted control of the car with the intent to or knowledge that his actions would permanently deprive the owner of its use and benefit. Bivens, 156 Ill. App. 3d at 231.

In another case cited by defendant, In re T.A.B. (1989), 181 Ill. App. 3d 581, the juvenile was accused of possession of a stolen motor vehicle, in violation of section 4 — 103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)), and on appeal from an adjudication of delinquency he argued that he had not been proved guilty beyond a reasonable doubt. Relying on the statutory definition of “stolen property” (Ill. Rev. Stat. 1987, ch. 38, par. 15 — 6), this court held that where the evidence showed that it was the person charged who had taken the owner’s car, the State is obliged to prove that the defendant knowingly exerted control over the car in such a manner as to permanently deprive the owner of its use, or, in effect, to prove the defendant committed the theft. This court concluded that the evidence supported a finding that the juvenile was involved in a joyriding escapade, but not a theft. T.A.B., 181 Ill. App. 3d at 586.

The facts here indicate that the defendant was the person who took Darla Walker’s car. Accordingly, the State would have to prove that the defendant knowingly exerted control over the car in such a manner as to permanently deprive Darla Walker of the use of her car. (T.A.B., 181 Ill. App. 3d at 586.) We hold that under the facts of this case, where the State was required to prove intent to permanently deprive the owner of the use of her car and where the defendant submitted instructions defining theft and the phrases used therein, including “permanently deprive,” the court erred in refusing to allow these instructions to be given to the jury.

The State has cited the case of People v. Bradley (1989), 192 Ill. App. 3d 387, a case in which the defendant was convicted of possession of a stolen motor vehicle. On appeal, the defendant argued that the jury should have been instructed on intent to permanently deprive the owner of the car’s use and benefit. The court found the issue waived for the defendant’s failure to tender the instruction. (Bradley, 192 Ill. App. 3d at 393.) However, the court went on to consider the merits and indicated that not only was there no suggestion in the Illinois Pattern Jury Instructions that an additional definition was needed, but the word “stolen” implies that the perpetrator of the crime intended to permanently deprive the owner of its use and benefit. Therefore, the court concluded that no further instructions were needed to inform the jury that they must consider whether there was an intent to permanently deprive. Bradley, 192 Ill. App. 3d at 393-94.

Bradley is distinguishable from this case, and we decline to follow it to the extent that it suggests that the jury need never be instructed on intent to permanently deprive. First, Bradley was decided on a waiver basis, and further discussion regarding the merits of the case was, presumably, due to the court's consideration of whether plain error occurred. Thus, the issue in Bradley was whether the failure to instruct the jury as to the intent to permanently deprive denied the defendant a fair trial. The facts in Bradley include that the owner of the car did not know the defendant or where he lived; and the defendant was still using the car three days after it was reported stolen. Within the context of these facts, the court concluded that no plain error occurred. On the other hand, here the defendant did not waive the issue. Defendant tendered instructions on theft and definitions of “exerts control” and “permanently deprive,” but the court refused to allow the instructions to be given to the jury.

Second, to the extent that the Bradley court addressed the merits of the issue and found that “stolen” implies an intent to permanently deprive, the Bradley court relied on People v. Johnson (1981), 98 Ill. App. 3d 228, and People v. Browry (1972), 8 Ill. App. 3d 599. In Johnson, the court held that it was not error for the court to fail sua sponte to instruct the jury on theft in a burglary conviction. The court relied on a waiver theory and rejected an argument of plain error because the court in Browry (8 Ill. App. 3d at 604) held that “theft” is a simple word of common usage not needing a definition in a burglary prosecution. The Johnson court also noted that the Committee Notes to the burglary instruction (IPI Criminal No. 14.05) do not require the intended felony or theft to be defined by instruction. Johnson, 98 Ill. App. 3d at 234-35.

In this regard, we note that the Committee Notes to the burglary instruction now recommend that a definition of the offense of theft or other specified felony be given if requested by either party or sua sponte. (IPI Criminal 2d No. 14.06, Committee Note.) Also, while the issue of intent to permanently deprive may not be a critical one in some cases, here there was evidence supporting a theory that defendant did not intend to permanently deprive the owner of her property.

In People v. Washington (1989), 184 Ill. App. 3d 703, this court held that the failure to instruct the jury that theft requires intent to permanently deprive was not error. In that case, the defendant had been charged with possession of a stolen vehicle, and the evidence showed that it was someone other than the defendant who took the car. The jury was instructed on “stolen property” as “property over which control has been obtained by theft.” (IPI Criminal 2d No. 13.18.) The court specifically reasoned that intent to permanently deprive is not an element of the offense of possession of a stolen motor vehicle, and defendant’s mental state in that regard was irrelevant under the facts of the case. However, the court noted that in some instances “conviction under section 4— 103(a)(1) may be predicated upon possession by the same individual who allegedly committed the theft of the motor vehicle [citation] and, in such a case, proof of that person’s mental state inconsistent with that required for theft would prevent a conviction under section 4 — 103(a) based on possession of a stolen motor vehicle.” (Washington, 184 Ill. App. 3d at 708.) The conviction here is just such a case.

The sole function of jury instructions is to convey the correct principles of law applicable to the evidence submitted to the jury. Jury instructions enable the jury to apply the proper legal principles to the facts and arrive at a correct conclusion according to the law and the evidence. (People v. Moya (1988), 175 Ill. App. 3d 22, 25.) “[T]heft” is defined in the dictionary as “the felonious taking and removing of personal property with intent to deprive the rightful owner of it” or “an unlawful taking.” Webster’s Ninth New Collegiate Dictionary 1222 (1990).

Common usage may imply a wrongful taking, but does not necessarily impart that the taking must be with the intent to permanently deprive the owner of the property. In view of the facts of this particular case, where there was ample evidence which might support a finding that defendant did not intend to permanently deprive the owner of her car, it was an abuse of discretion not to allow the jury to be instructed as to the elements of theft, including the intent to permanently deprive. A party is entitled to have the jury instructed on his theory of the case, and it is an abuse of discretion for the trial court to refuse to instruct the jury on the defendant’s theory of the case if it has some foundation in the evidence. People v. Swartz (1989), 186 Ill. App. 3d 399, 401.

The State argues that the instructions were properly rejected because they were confusing. First, the State contends that the definition of “permanently deprive” was confusing because defendant failed to delete the subsections which were not applicable. The State cites no authority for this proposition. The instruction mirrors the language in IPI Criminal 2d No. 13.15, and we find it to be an accurate definition of the phrase.

The State also argues that the instructions were confusing because they introduced issues in theft and defined “permanently deprive” without tying those instructions to the charged offense. It is true that the first instruction offered by the defendant placed the definition of theft within the charge of possession of a stolen motor vehicle. The clearest manner in which to instruct the jurors would be to define “stolen property” as “property over which control has been obtained by theft” (Ill. Rev. Stat. 1989, ch. 38, par. 15 — 6), thereby introducing the notion that the property must have been taken by a theft. However, defendant cannot be faulted for not giving the definition of “stolen property” to tie the charge of possession of a stolen motor vehicle to the definition of theft since the court had already ruled that it would not allow such an instruction. After reading the definition of “stolen property,” the court gave its opinion that such an instruction would not be appropriate because it would lead to a definition of “theft” when “theft” was not an issue. On remand, the court should allow instructions which include the definition of “stolen property,” the issues for a charge of theft and the definitions applicable thereto.

Having decided that we must reverse the judgment and remand this cause so that the jury can be instructed on issues pertinent to theft, we must consider the defendant’s claim of insufficient evidence in order to avoid the risk of double jeopardy. People v. Finke (1990), 204 Ill. App. 3d 748, 760.

Defendant’s challenge to the sufficiency of the evidence focuses on the fact that the owner of the car, Darla Walker, was so intoxicated that her story that the car had been taken from her by force was unbelievable. While there is evidence to indicate that Darla Walker was intoxicated and unable to relate coherently the entirety of what had occurred until the morning after the incident, there are also facts suggesting that the details she related at the time she first talked with police officers were consistent with her later story that she had been forced from her car. The question of credibility of a witness is best left for the jury. (People v. Janik (1989), 127 Ill. 2d 390, 402.) Moreover, there were facts which tended to support the State’s theory that defendant had stolen the vehicle, including the fact that Walker’s purse was found in the car when the defendant was stopped a few hours after Darla claimed she was forced from the car. The fact that the defendant returned to an area where he was known may be explained by the fact that defendant felt free to return to the area because he knew that Darla Walker was so intoxicated that it was likely that a substantial period of time would pass before she would report the theft to the police. Thus, the evidence was sufficient, if believed by the jury, to allow the jury to find that the defendant possessed a stolen motor vehicle.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE MANNING

text:
    TIMOTHY BECK, a Minor, by his Mother and Next Friend, Linda Beck, et al., Plaintiffs-Appellants, v. HAROLD M. YATVIN et al., Defendants-Appel-lees (Ingalls Memorial Hospital, Defendant-Appellee).
    First District (1st Division)
    Nos. 1—90—1508, 1—90—2190
    Opinion filed July 6, 1992.
    Rehearing denied November 23, 1992.
    George M. Elsener & Associates, of Chicago (George M. Elsener and Michael I. Starkman, of counsel), for appellants.

      Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Patricia J. Barker, and Diane I. Jennings, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

Plaintiffs brought an action alleging medical malpractice for injuries to their minor son sustained during his birth on November 10, 1980, and seeking recovery under the family expense statute (Ill. Rev. Stat. 1987, ch. 40, par. 1015) for his extraordinary medical expenses. The circuit court ruled that plaintiffs were precluded from pursuing their family expense statute claim pursuant to the applicable statute of limitations in effect on the date of accrual of their cause of action. The circuit court found that the statute of limitations for plaintiffs’ cause of action expired on November 9, 1982, and rejected their contention that a 1987 amendment to section 13 — 203 (Pub. Act 85 — 907, eff. July 1, 1987 (now codified as Ill. Rev. Stat. 1989, ch. 110, par. 13 — 203)) reflected the intent of the legislature to retroactively toll the statute of limitations for their action to coincide with that of the child.

The two issues raised by plaintiffs below and on appeal are whether the parents’ medical expense claim is tolled during the minority of an injured child pursuant to the tolling provision found in section 13 — 211 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211), and whether the 1987 amendment to section 13 — 203 should be applied retroactively to plaintiffs’ cause of action. The circuit court responded negatively to both questions. We agree.

Plaintiff-appellant, Linda Beck, as mother and next friend of Timothy Beck, a minor, first filed a medical malpractice suit against defendant-appellee Harold M. Yatvin, M.D., on December 10, 1987. She subsequently filed a first amended complaint adding defendant-appellee Medical Associates, S.C., Dr. Yatvin’s employer. On November 24, 1989, plaintiff’s second amended complaint added defendants-appellees Ingalls Memorial Hospital (Ingalls), Binay K. Sinha, M.D., and his employer, Community Medical Center, S.C. The complaint sought money damages for Timothy’s injuries allegedly sustained during the perinatal period and at the time of his birth. Linda and Rory Beck, the father, also sued the same defendants in their own behalf seeking recovery of medical expenses.

The trial court granted defendant Ingalls’ motion to dismiss the claim in an order entered on April 23, 1990, finding that there was no just cause to delay enforcement or appeal of the court’s ruling. Plaintiffs’ appeal from that order was filed on May 22, 1990, and docketed in this court as appeal No. 1 — 90—1508. The trial court also granted defendants Dr. Yatvin, Dr. Sinha, and their respective employers summary judgment on plaintiffs’ family expense statute claim in an order entered on June 26, 1990, again finding that there was no just cause to delay enforcement or appeal. Plaintiffs' appeal from that order was filed on July 25, 1990, and is docketed as appeal No. 1 — 90—2190. On October 1, 1990, we consolidated the two appeals and the appellees’ brief is filed on behalf of all defendants.

Section 15 of the Rights of Married Women Act (Ill. Rev. Stat. 1987, ch. 40, par. 1015), commonly referred to as the family expense statute, requires parents to pay for the necessary expenses of their minor children. (See In re Marriage of Van Winkle (1982), 107 Ill. App. 3d 73, 437 N.E.2d 358.) This obligation includes the payment of the minor child’s medical payments. (Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 412 N.E.2d 624.) Since the obligation to pay the child’s medical expense is on the parent, it has been held that the cause of action to recover for medical expenses lies in the parent, rather than the child. In re Estate of Hammond (1986), 141 Ill. App. 3d 963, 491 N.E.2d 84; Reimers v. Honda Motor Co. (1986), 150 Ill. App. 3d 840, 502 N.E.2d 428.

Our court also has held that an action pursuant to the family expense statute is derivative since the right of action arises out of injury to the person of another; thus, the statute of limitations for “actions for damages for loss of consortium or other actions deriving from injury to the person of another” applies. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 203; Severe v. Miller (1983), 120 Ill. App. 3d 550, 458 N.E.2d 173.) Section 13 — 203, prior to the 1987 amendment read, in pertinent part: “Actions for damages *** shall be commenced within the same period of time as actions for damages for injury to such other person.” Ill. Rev. Stat. 1985, ch. 110, par. 13-203.

Similarly, in a decision decided prior to the 1987 amendment, it was determined that a claim brought under the family expense statute did not enjoy the same tolling of the statute of limitations for minors as that applicable to the minor child’s medical cause of action. (See Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211; Swider v. Holy Cross Hospital (1986), 146 Ill. App. 3d 740, 497 N.E.2d 474.) In fact, every court to consider this issue prior to 1992 has ruled that the tolling provisions of section 13 — 211 apply only if the person entitled to bring the action is under the age of 18 years. See Reimers, 150 Ill. App. 3d 840, 502 N.E.2d 428; Severe, 120 Ill. App. 3d 550, 458 N.E.2d 173; Fess v. Parke, Davis & Co. (1983), 113 Ill. App. 3d 133, 446 N.E.2d 1255; see also Curtis v. Womeldorff (1986), 145 Ill. App. 3d 1006, 496 N.E.2d 500; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6.

However, plaintiffs assign error to each of the aforementioned appellate court decisions. They argue that Fess and its progeny misread the statutory intent and improperly cut off the parent’s cause of action.

Plaintiffs contend that the 1987 amendment by Public Act 85— 907 made the intent of the legislature clear by simply restating “same” time to specifically incorporate the tolling provision of section 13 — 211 into actions governed by section 13 — 203. They contend that a subsequent amendment should be considered in determining legislative intent (see City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492), especially where the amendment merely restates the original intent (see Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 319 N.E.2d 37), and that it should be applied to all pending matters where the amendment simply clarifies the statute and corrects an ambiguity. O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204.

Defendants counter that at the time of the occurrence at issue in 1980, the statutes of limitations applicable to plaintiffs’ claims were section 13 — 203 and section 13 — 212, which govern actions arising from injury to another purportedly caused by medical malpractice. (Ill. Rev. Stat. 1981, ch. 110, pars. 13 — 203, 13 — 212.) They urge this court to reject plaintiffs’ contention that the limitations period for their cause of action is tolled during the child’s minority.

Defendants also maintain that the 1987 amendment to section 13 — 203 does not affect the proper interpretation of its predecessor since a statutory amendment creates a presumption that the legislature intended the amendment to change the law as it formerly existed (Sanchez v. Access Associates (1989), 179 Ill. App. 3d 961, 966, 535 N.E.2d 27) and plaintiffs here did not overcome such presumption.

The legislative history of section 13 — 203 shows that Public Act 80 — 714, enacted by the legislature in 1977, consisted of one sentence: “Action for damages for loss of consortium or other actions derived from injury to the person of another should be commenced within the same period of time as actions for damages for injury to such other person.” This Act was codified as section 14.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 15.1) and later renumbered as section 13 — 203 of the Code of Civil Procedure (Ill. Rev. Stat. 1979, ch. 110, par. 13-203). Then, in 1987, Public Act 85 — 907 was passed as an amendment to Public Act 80 — 714 and provides:

“Where the time in which the cause of action of the injured person whose injuries give rise to the cause of action brought under this Section is tolled or otherwise extended by any other Section of this Act, including Sections 13 — 211, 13 — 212 and 13 — 215, the time in which the cause of action must be brought under this Section is also tolled or extended to coincide with the period of time in which the injured person must commence his or her cause of action.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 203.

As mentioned above, section 13 — 203, governing “loss of consortium” or “other actions,” was a one-line section until amended by Public Act 85 — 907 in 1987. This amendment seems to be clear on its face that the time to bring an action pursuant thereto is tolled “[wjhere the time in which the cause of action of the injured person whose injuries give rise to the cause of action brought under this Section is tolled.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 203.) It is likewise clear that an action for “loss of consortium” brought under section 13 — 203 by a third party would be tolled or extended to coincide with the period of time in which the injured person suffering from a legal disability or minority (see sections 13 — 211 and 13— 212) could in fact bring his or her cause of action.

The question, however, remains what are “other actions deriving from injury to the person of another.” Prior to the 1987 amendment, our court had interpreted section 13 — 203, by way of section 13 — 212, to include such actions as plaintiffs’ claim here for extraordinary medical expenses on behalf of a minor in a medical malpractice action.

Defendants suggest that the Governor’s veto and the legislature’s acquiescence thereto in the foregoing proposed section 13— 211.1 signalled the rejection altogether of allowing family medical expense claims to be brought pursuant to section 13 — 203. Yet, a review of the Governor’s remarks, proposed section 13 — 211.1 and the current section 13 — 203 indicates that some of the same language proposed in section 13 — 211.1 found its way into section 13 — 203, especially the language specifically incorporating the tolling provisions of sections 13 — 211 and 13 — 212.

The better view suggests that “other actions” found in section 13 — 203 include the type of action brought by plaintiffs here and the amendment then would allow the parents’ action to be tolled or extended to coincide with that of the minor child’s action. Thus, we believe that there is merit in plaintiffs’ argument regarding the tolling of claims, such as theirs, brought under the family expense statute in light of the amendment to section 13 — 203. In fact, our court has recently held that an action under the family expense statute accords plaintiff the same period of limitations as the person from whom the action is derived. See Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 558 N.E.2d 304.

Nevertheless, assuming the applicability of the amended version of section 13 — 203 herein, such amendment cannot be used to retroactively alter the clear and unambiguous statutory language. Roth v. Yackley (1979), 77 Ill. 2d 423, 428, 396 N.E.2d 520.

Even assuming the amendment in question changes the law with regard to parents’ family expense statute claims, the plaintiffs’ contention here nonetheless fails because our supreme court has repeatedly pronounced that amendments which lengthen the statute of limitations must not be applied retroactively to revive a cause of action previously barred. See, e.g., Conner v. Copley Press, Inc. (1984), 99 Ill. 2d 382, 459 N.E.2d 966; Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489; Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 380 N.E.2d 782.

Based upon the rules of statutory construction, we conclude that the amendment cannot be used to retroactively revive a cause of action previously barred. Furthermore, at the time of the occurrence in issue, the statute in effect did not specifically provide for incorporation of the tolling provisions found in the sections 13 — 211, 13-212 and 13-215.

Based on the foregoing, we affirm the judgment of the circuit court of Cook County in both appeals.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.