author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ANTHONY QUALLS, Petitioner-Appellant.
    Second District
    No. 2—90—1356
    Opinion filed August 28, 1992.

      G. Joseph Weller and Sherry R. Silvern, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Anthony Qualls, filed this timely appeal from the Lake County circuit court’s denial of his petition under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.). The sole issue presented on review is whether, in light of recent Federal decisions, the rule in People v. Reddick (1988), 123 Ill. 2d 184, should be applied retroactively to a case under consideration in a State post-conviction proceeding.

In 1983, defendant was charged by information with the offenses of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(a)(l)), attempted murder (Ill. Rev. Stat. 1983, ch. 38, par. 8—4(a)) and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A—2). The charges stemmed from an incident in which defendant allegedly fired a pistol, fatally wounding one victim and seriously wounding another. Defendant was found guilty by a jury of murder and armed violence and sentenced to 25- and 10-year concurrent terms of imprisonment. Defendant appealed the judgment, and this court reversed and remanded for a new trial on the basis of People v. Lynch (1984), 104 Ill. 2d 194. People v. Qualls (1984), 127 Ill. App. 3d 1167 (unpublished order under Supreme Court Rule 23).

In June 1985, a second jury trial was held. Prior to deliberation, the jury was instructed on the offenses of murder and voluntary manslaughter in accordance with Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.05 and 7.06 (2d ed. 1981) (hereinafter IPI Criminal 2d). IPI Criminal 2d No. 7.02 informed the jury of the propositions necessary for the State to prove the charge of murder; IPI Criminal 2d No. 7.05 provided a definition of the crime of voluntary manslaughter; and IPI Criminal 2d No. 7.06 informed the jury of the propositions necessary for the State to prove a charge of voluntary manslaughter. Defendant was again found guilty of murder and armed violence and sentenced to 25- and 10-year concurrent terms of imprisonment. Defendant’s post-trial and supplemental post-trial motions were subsequently denied, and defendant appealed. In January 1987, this court affirmed defendant’s convictions. People v. Qualls (1987), 151 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

In 1988, the Illinois Supreme Court held, in People v. Reddick (1988), 123 Ill. 2d 184, 198, that the reading of IPI Criminal 2d Nos. 7.02, 7.04 and 7.06 together constituted grave error. The court concluded that the instructions when read together “erroneously state[d] the burdens of proof on the issues of whether the defendants acted under either intense passions or unreasonable beliefs that their actions were justified.” (Reddick, 123 Ill. 2d at 194.) The instructions, as they existed at that time, would have rendered it impossible for a jury to convict a defendant of voluntary manslaughter because, even if the defendant had proved the mitigating mental state, it would not necessarily have been proved by the State as required by the instructions. (Reddick, 123 Ill. 2d at 194-95.) Although it recognized an error in Reddick, the court did not explicitly hold the error to be one of constitutional dimension. Instead, the court relied upon the affirmative defense provisions in the Criminal Code of 1961 in allocating the burdens of proof for the offenses of murder and voluntary manslaughter. See People v. Shields (1991), 143 Ill. 2d 435, 443.

On January 31, 1989, defendant, pro se, filed his petition for post-conviction relief. Defendant alleged that he was denied his right to due process because the jury, at his second trial in 1985, had been instructed contrary to the rule in Reddick.

During the time defendant’s petition was pending, yet prior to the Illinois Supreme Court’s explicit recognition that a Reddick error was one implicating constitutional rights (see People v. Flowers (1990), 138 Ill. 2d 218, 235-37), the United States Court of Appeals for the Seventh Circuit, in Falconer v. Lane (7th Cir. 1990), 905 F.2d 1129, held that the instructional error identified in Reddick denied a defendant due process and, in affirming the lower court’s decision granting habeas corpus relief, stated that “the district court’s decision in this case effectuated the holding of Reddick through the vehicle of the Due Process Clause.” Falconer, 905 F.2d at 1136.

In September 1990, approximately three months after Falconer was decided and prior to the disposition of defendant’s petition, the Illinois Supreme Court in People v. Flowers (1990), 138 Ill. 2d 218, 237-39, held that the rule in Reddick was a new constitutional rule of criminal procedure and that it would not be applied retroactively to a case under consideration in a post-conviction proceeding.

On November 2, 1990, the trial court denied defendant’s petition for post-conviction relief on the basis of the Illinois Supreme Court’s decision in Flowers. Defendant appeals from that order.

Defendant contends that the Federal district court’s subsequent grant of habeas corpus relief to Marvin Flowers (the defendant in the Illinois Supreme Court decision) signaled a “reversal” of the Illinois Supreme Court’s decision in that case. (See United States ex rel. Flowers v. Illinois Department of Corrections (N.D. Ill. 1991), 767 F. Supp. 880, aff'd (7th Cir. 1992), 962 F.2d 703.) In his reply brief, defendant cites additional Federal decisions that either grant or affirm the grant of habeas corpus relief to defendants alleging violations of Federal due process rights stemming from the jury instructions discredited by Reddick. See, e.g., Taylor v. Gilmore (7th Cir. 1992), 954 F.2d 441.

In Taylor, the court considered the issue of retroactive application on collateral review of the rule it announced in Falconer and the rule announced in Reddick. In order to reach its decision, the court found it necessary to “dispel the lingering impression” that its holding in Falconer imparted “federal constitutional content” to Reddick. (Taylor, 954 F.2d at 448.) The court further concluded that because Reddick did not rest upon Federal due process principles the defendant in Taylor could not “reap the benefit of Reddick on collateral review, [because the court] may not grant habeas relief to remedy an error of state law.” (Taylor, 954 F.2d at 449.) Thus, contrary to defendant’s assertion here, the court did not hold that Reddick would apply retroactively on collateral review.

The court later concluded, however, that its holding in Falconer could be applied retroactively because it did not state a new rule of constitutional magnitude. (Taylor, 954 F.2d at 453.) In reaching its decision, the court shifted its rationale from one of “ effectuating] the holding of Reddick through the vehicle of the Due Process Clause” to one based upon established precedent that recognized constitutional violations stemming from vague and confusing jury instructions. Falconer, 905 F.2d at 1136; see Flowers v. Illinois Department of Corrections (7th Cir. 1992), 962 F.2d 703, 709 (Easterbrook, J., concurring).

While it is apparent that the lower Federal courts are at odds with the Illinois Supreme Court’s determination concerning the retroactivity of Reddick in post-conviction litigation, and, in defendant’s opinion, we should follow the “lead of the federal courts,” we refuse to depart from our supreme court’s holding in Flowers, as that decision is the law of our State. (People v. Von Perbandt (1991), 221 Ill. App. 3d 951, 957.) Decisions of the United States District Court and the Court of Appeals are not binding upon the State courts (People v. Fields (1990), 135 Ill. 2d 18, 72) and are held to be no more than persuasive authority (People v. Stansberry (1971), 47 Ill. 2d 541, 545). Moreover, it is fundamental that the appellate court is without authority to modify the decisions of the State supreme court. (Village of Deerfield v. Greenberg (1990), 193 Ill. App. 3d 215, 220; People v. Nurse (1985), 131 Ill. App. 3d 590, 594.) Therefore, in the absence of a directive from our supreme court, or contrary authority from the United States Supreme Court, we affirm the trial court’s denial of defendant’s post-conviction petition.

For the foregoing reasons, we affirm the order of the circuit court of Lake County denying defendant’s post-conviction petition.

Affirmed.

DUNN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    LARRY K. FOSDYCK et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES, MARSHALL, PUTNAM, AND WOODFORD COUNTIES, et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0970
    Opinion filed August 24, 1992.

      J. Brian Heller, of Washington, for appellants.
    5. Jeff Funk, of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellee Lowpoint-Washburn Community Unit School District No. 21.
    John B. Huschen, State’s Attorney, of Eureka (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State's Attorneys Appellate Prosecutor’s Office, of counsel), for appellee Regional Board of School Trustees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Phyllis and Larry Fosdyck, petitioned the Regional Board of School Trustees of Marshall, Putnam, and Woodford Counties (Regional Board) to detach their property from their current school district and annex it to an adjacent district. The Regional Board denied their petition, the circuit court affirmed, and plaintiffs appeal. The only issue on appeal is whether the Regional Board’s decision to deny the petition was against the manifest weight of the evidence. We conclude that it was and reverse.

I. Facts

On July 15, 1991, plaintiffs filed a petition, pursuant to section 7—6 of the School Code (Code) (Ill. Rev. Stat. 1991, ch. 122, par. 7— 6), with the Regional Board seeking to detach approximately 155 acres of land in Woodford County from Lowpoint-Washburn Community School District No. 21 (Lowpoint-Washburn) and annex it to Metamora Community Consolidated School District No. 1 (Metamora Grade School) and Metamora High School District No. 122 (Metamora High School). The 155 acres in the petition consist of six parcels of land owned by various people. The total equalized assessed valuation of the subject property is $39,720, and the property yields $2,081 annually in taxes to the Lowpoint-Washburn School District. This land is largely farmland, and plaintiffs own the only home on the subject property. No registered voters other than plaintiffs reside on the subject property.

At the hearing on this petition, plaintiffs provided uncontradicted testimony regarding their connections with the Metamora school system and their desire for their children to attend school there. Plaintiffs have six children, ranging in age from 3 to 20. Prior to a recent move to their current home, their children have always attended Me-tamora schools. Plaintiffs originally lived in the Village of Metamora and later moved to Cazenovia, a town near Metamora that also lies within the Metamora school districts. A few years ago, for reasons unrelated to school districting, plaintiffs again moved, this time to their current residence at Route 3, Metamora. Plaintiffs admitted they bought their home knowing that the property was in the Low-point-Washbum school district.

Plaintiffs now live on the border between the two districts, but live closer to Metamora High School (4.1 miles) than they do to Washburn High School (8.8 miles). Indeed, they now live V-k to 2 miles closer to the Metamora schools than when they lived in Cazeno-via. Partly because of this proximity to the Metamora schools, the children would not need to travel as long to get to school as they would if they attended the Lowpoint-Washburn schools. In addition, Phyllis Fosdyck owns an upholstery business in Metamora, located only six blocks from the high school and 2V2 blocks from the grade school. Because of the proximity of her business to the school, she drives her children to the Metamora schools in the morning, and they walk to her business after school to get a ride home. She could not drive the children to Lowpoint-Washburn if they attended that school. Phyllis’ business is approximately a five-minute drive from their home, whereas the bus ride to the Lowpoint-Washburn school from their home takes 45 minutes to an hour each direction.

This decreased travel time if the children attended Metamora schools would allow one of the children to start an after-school job he wants in Washington, Illinois. Because of the proximity to his mother’s business, he could walk to the upholstery shop after school to pick up a vehicle to drive south to get to work on time. If he needed to ride the bus home from the Lowpoint-Washburn school, however, he could not get to work on time.

Plaintiffs did not focus solely on their proximity to the Metamora schools to support their petition. The children also do not want to leave the Metamora schools. Plaintiffs’ 16-year-old son said that he would quit school before he would go to Lowpoint-Washburn; indeed, were it not for the shop class at Metamora High School, the 16 year old has said that he would not stay in school at all.

As to the academic differences between the schools, Phyllis believes that Metamora exceeds Washburn in all areas. Specifically, she mentioned that Metamora’s shop class is better than even the local junior college’s class, and that the Metamora grade school offers Spanish, which the nine year old has taken. She further stated that she was concerned that the Washburn High School and junior high are in the same building. Conversely, Metamora has separate buildings for the high school and the grade school.

The children also have special needs that the Metamora schools have already accommodated. One child is hypoglycemic, so special arrangements have been made with the Metamora schools to allow him to go to the cafeteria to get food when needed. Another child needs special help with reading, and the Metamora school provides an excellent reading and phonics program to address reading disabilities. Finally, two of the children have deformities in their lower back, and thus have a regular appointment after school, three days a week, with a chiropractor in Metamora. The children could not make their appointments if they went to Lowpoint-Washburn schools.

The children also all enjoy playing various sports, including football, wrestling, tennis, and track. In addition, the two younger children want to play football and basketball in the future. Metamora offers more extracurricular sports, including wrestling, tennis, and football. Lowpoint-Washburn does not offer any of these sports. Meta-mora also has a weight-lifting room, two gymnasiums, and a practice room for tennis. Lowpoint-Washburn has none of these facilities. The children also play summer baseball in Metamora, and use the library and swimming pool in Metamora. One of the children plans to become involved in 4-H through the Metamora Grade School.

Plaintiffs also socialize regularly with people who have children in the Metamora schools but do not socialize with people who have children in the Washburn schools. Plaintiffs do their shopping, banking, and socializing in Metamora, and they obtain medical and other services there, as well. Plaintiffs attend the Germantown Hills Baptist Church and must drive through Metamora to go to church. No members of the congregation live in the Washburn area, but some members reside in Metamora. In addition, Phyllis testified that she drives south to Metamora approximately three times a day but travels north to Washburn approximately only six times a year. Larry works at Caterpillar Tractor Company in East Peoria, Illinois, and drives through Metamora to get to work. He stated he travels north to Washburn about 12 times a year.

Finally, plaintiffs have family living in Metamora in case of an emergency. If an emergency occurs and the school cannot contact plaintiffs, the children can walk to their aunt and uncle’s home in Me-tamora, located only two blocks from the high school and six blocks from the grade school. Plaintiffs would have no similar arrangements if the children went to Lowpoint-Washburn.

Plaintiffs also introduced the following exhibits: (1) letters from Leonard Ulrich, Marvin DuBois, and Joseph Garber, landowners in the detachment area, that expressed their approval for the detachment, and a letter from Lawrence DuBois, landowner in the detachment area, stating he did not oppose the petition; (2) a letter from Bob Fredericks, realtor from RE/MAX Realtors, stating that a dwelling located in Cazenovia Township, Woodford County, would have 8% to 10% more fair market value if it was located in the Metamora school district rather than Washburn school district; and (3) Illinois State Board of Education report cards on the school districts involved in the petition. Leonard Ulrich, owner of 29 acres of land listed in the petition, also testified that he favors the petition being granted. Ul-rich further stated he also works in Metamora and has social ties to the community. He stated that he had trouble selling the house the plaintiffs bought because it was in the Lowpoint-Washbum school district.

In opposition to the detachment, Thomas Wagner, superintendent at Lowpoint-Washbum, testified that detaching the 155 acres would decrease Lowpoint-Washbum’s tax revenue by $2,000. He stated that although this was not a large sum of money, small districts are struggling for money, and this sum would represent the cost of educating two-thirds of a student for the district. He testified that before plaintiffs moved, they attended a board meeting on July 2, 1990, and requested that the board approve the detachment. The board denied the petition, yet plaintiffs still moved knowing the board’s position. At the March 5, 1991, school board meeting, plaintiffs asked the board to reconsider its decision, but the board refused. Wagner stated that the board traditionally refused to approve any detachment request because of the “domino effect” that would occur; in his words, “if this happens to one family who lives on the border, other families that live on the border of our district will seek detachment thus eroding our tax base further.”

Barry Belshaw, president of the board of education of Lowpoint-Washbum, testified that Lowpoint-Washburn offered a good curriculum and all classes needed to get its graduates into college. He also stated that the gymnasium and locker rooms separated the grade school from the high school.

A letter from the superintendent of Metamora Grade School stated that the school did not actively seek annexation to its district boundaries at the expense of another school district. However, the letter added that should the Regional Board decide to grant the petition, the school district would gladly accept the children. Similarly, Christie Barrow, president of the Metamora Township Educational Board, testified that the high school took a neutral position on the issue. She stated that the Board did not oppose the annexation and that its facilities and staff would provide a good education to plaintiffs’ children should the Regional Board choose to grant the petition.

After hearing the evidence, the Regional Board denied the petition. In its order of denial, it stated that it heard the evidence as to the school needs and conditions of the respective districts to meet standards prescribed by the State Superintendent of Education. The Regional Board also stated that it considered whether the best interest of the schools and the educational and physical welfare of the pupils would be served if the petition were granted. The Regional Board made no other factual findings.

In August 1991, plaintiffs filed a complaint, pursuant to section 7—7 of the Code (Ill. Rev. Stat. 1991, ch. 122, par. 7—7), in the circuit court of Woodford County seeking administrative review of the Regional Board’s order. The circuit court affirmed the decision of the Regional Board, and this appeal followed.

II. Analysis

A. Standard of Review

Under the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3—101 et seq.), the findings and conclusions of regional boards on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3—110.) However, this rule “does not relieve a court of the important duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact.” (Oakdale Community Consolidated School District No. 1 v. County Board of School Trustees (1957), 12 Ill. 2d 190, 195, 145 N.E.2d 736, 738.) When deciding petitions like the present one,

“ ‘local boards [should] weigh the relevant factors to determine the action best serving [the] entire education system. When the entire record indicates *** that the board has considered the applicable statutory standards and is supported in its conclusion by substantial evidence, its determination must be affirmed.’ It is not for a court to reweigh evidence or substitute its judgment for that of the Regional Board.” Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 396-97, 433 N.E.2d 240, 242, quoting School Directors of School District No. 82 v. Wolever (1962), 26 Ill. 2d 264, 268, 186 N.E.2d 281, 283.

B. Petitions To Detach and Annex Property

Section 7—6(i) of the Code provides the following:

“(i) The regional board of school trustees *** shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils that such change in boundaries be granted ***.” Ill. Rev. Stat. 1991, ch. 122, par. 7—6(i).

The supreme court has interpreted this statutory standard to require that petitions for detachment be granted only where the “overall benefit to the annexing district and the detachment area considered together *** ‘clearly outweighs the detriment resulting to the losing district and the surrounding community os a whole.’ ” (Emphasis in original.) Golf, 89 Ill. 2d at 400-01, 433 N.E.2d at 243, quoting Oakdale, 12 Ill. 2d at 194, 145 N.E.2d at 736; see also Carver v. Bond/Fayette/Effingham, Regional Board of School Trustees (1992), 146 Ill. 2d 347, 356, 586 N.E.2d 1273, 1277.

Courts have relied on various factors to determine whether this standard has been met. In Bowman v. County Board of School Trustees (1974), 16 Ill. App. 3d 1082, 1085, 307 N.E.2d 419, 421, the court asserted that the controlling factor in the application of the benefit-detriment test was the “welfare of the affected districts and their pupils as a whole.” The court also set forth other factors that should be considered, such as the differences between the districts’ facilities, the effect detachment would have on either district’s ability to meet statutory standards of recognition, the distances from petitioners’ homes to both districts, identification of the detaching area with the annexing district, the likelihood of both parent and child participation in school activities, and the convenience and personal desires of the petitioners and their children. Bowman, 16 Ill. App. 3d at 1085, 307 N.E.2d at 421; see also Board of Education of Pearl City Community Unit School District No. 200 v. Regional Board of School Trustees (1981), 98 Ill. App. 3d 599, 603-04, 424 N.E.2d 808, 812; Board of Education, Community High School District No. 154 v. Regional Board of School Trustees (1980), 84 Ill. App. 3d 501, 504, 405 N.E.2d 495, 497-98.

Plaintiffs contend that regional boards must consider the above factors, as well as other judicially approved criteria, to determine whether detachment should be allowed. Lowpoint-Washbum, however, maintains that regional boards must only consider four factors in determining whether to grant or deny a petition for detachment, with consideration of other factors being discretionary. The four mandatory factors are the differences between school facilities and curriculum, the distances from petitioners’ home to each school district, the effect detachment would have on each district’s ability to meet State standards of recognition, and the impact of the proposed boundary change on the tax revenues of each district.

The apparent confusion regarding the factors the regional board must consider arises from the supreme court’s language in Carver, wherein the court wrote the following:

“In applying [the] benefit-detriment test, regional boards, and the courts reviewing their decisions, are to consider [1] differences between school facilities and curricula, [2] the distances from the petitioners’ homes to the respective schools, [3] the effect detachment would have on the ability of either district to meet State standards of recognition, and [4] the impact of the proposed boundary change on the tax revenues of both districts. (Bowman v. County Board of School Trustees (1974), 16 Ill. App. 3d 1082, 1085.) They also may consider [5] the ‘whole child’ and [6] ‘community of interest’ factors: the identification of the petitioning territory with the district to which annexation is sought, and the corresponding likelihood of participation in school and extracurricular activities. (Golf 89 Ill. 2d at 398-99.) Although [7] the personal desires of the petitioning parents may be taken into account, more than personal preference is needed to support a change in school district boundaries. Golf, 89 Ill. 2d at 400; Oakdale, 12 Ill. 2d at 193.” (Emphasis added.) Carver, 146 Ill. 2d at 356, 686 N.E.2d at 1277.

Because Carver states that regional boards “are” to consider some factors and “may” consider others, Lowpoint-Washburn concludes that regional boards need not consider the last three factors. We disagree. In the very paragraph that Lowpoint-Washburn cites as the basis of its argument, the supreme court cites Bowman approvingly; yet Bowman is expansive in its listing of factors that regional boards must consider. Accordingly, we hold that regional boards must consider all evidence presented regarding these factors, including evidence regarding the “whole child,” the “community of interest” concepts, and any personal preferences of plaintiffs.

If, after viewing the evidence, a regional board concludes that the detaching district will suffer a substantial detriment if detachment is allowed, it must then consider whether any benefits exist to the annexing district and detachment area that outweigh the detriments. If no offsetting benefits exist, the petition for detachment should be denied. (See Oakdale, 12 Ill. 2d at 194, 145 N.E.2d at 738.) Because every detachment and annexation proceeding results in some loss of assessed valuation and tax revenue to the district being reduced in size (Golf, 89 Ill. 2d at 401, 433 N.E.2d at 244), the supreme court has held that the financial detriment to the detaching district must be “serious” in order to serve as a valid basis for denying the detachment petition. Carver, 146 Ill. 2d at 357, 586 N.E.2d at 1277; Bowman, 16 Ill. App. 3d at 1086, 307 N.E.2d at 422; Board of Education of Jonesboro Community Consolidated School District No. 43 v. Regional Board of School Trustees (1980), 86 Ill. App. 3d 230, 233, 407 N.E.2d 1084, 1086.

Where the record discloses that the transfer would affect neither district in any substantial measure, the determination should turn solely on the welfare of the pupils in the area subject to detachment. (Jonesboro, 86 Ill. App. 3d at 233, 407 N.E.2d at 1086.) In the absence of substantial detriment to the losing district, the petitioner must establish some benefit to the educational welfare of the students in the detachment area. (Carver, 146 Ill. 2d at 358, 586 N.E.2d at 1278; Jonesboro, 86 Ill. App. 3d at 233, 407 N.E.2d at 1086; Board of Education, Community High School District No. 154 v. Regional Board of School Trustees (1980), 84 Ill. App. 3d 501, 505, 405 N.E.2d 495, 498; Bowman, 16 Ill. App. 3d at 1085, 307 N.E.2d at 422; Phillips v. Special Hearing Board (1986), 154 Ill. App. 3d 799, 804, 504 N.E.2d 1251, 1255.) Mere absence of substantial detriment to either district is insufficient to support a petition for detachment and annexation. School district boundaries should not be changed by reason of shopping, banking, or school preference; instead, those boundaries must be “ ‘designed with an eye to the educational welfare of the children residing in all the territory to be affected.’ ” Carver, 146 Ill. 2d at 358, 586 N.E.2d at 1278, quoting Oakdale, 12 Ill. 2d at 193, 145 N.E.2d at 740.

C. Application of the Factors

Plaintiffs argue that because Lowpoint-Washburn will suffer no substantial financial detriment, the welfare of the petitioners’ children should be the deciding consideration in this case. Plaintiffs further argue that because all the evidence shows that petitioners’ children will receive a better education in Metamora, the Regional Board’s denial of their petition was against the manifest weight of the evidence. We agree.

Plaintiffs also argue that the Regional Board relied on improper factors in denying the petition because the only bases for opposition to detachment were the negligible loss of tax money to Lowpoint-Washbum and the possibility of setting a precedent for further detachments. Plaintiffs note that both of these considerations have been deemed insufficient to deny a detachment petition.

In response, the Regional Board claims that its decision was supported by substantial evidence because there was conflicting evidence as to which school was better; it could have properly decided to place little weight on the concern for continuity in education, plaintiffs’ closer ties to Metamora, and to their community of interest with Me-tamora because they had moved to the area knowing it was in the Lowpoint-Washbum school district; and the financial loss to Lowpoint-Washbum was significant and not outweighed by any benefit.

Looking first to whether there will be a detriment to the detaching district if the petition were granted, the only evidence presented at the hearing regarding a detriment to Lowpoint-Washburn school district was the testimony of the superintendent of the district. He stated that the petition should be denied because of the loss of tax revenue, $2,081, the equivalent of the cost of educating two-thirds of a student, and the possibility of setting a precedent for future detachment.

The equalized assessed valuation of the land sought to be detached equals $39,720 or 0.19% of the district’s total assessed valuation. The annual loss to the district would be $2,081 or 0.1% of its yearly revenue. The Regional Board asserts that it could have determined that the loss in revenue to Lowpoint-Washbum was significant and cites Desmond v. Regional Board of School Trustees, Malta Community Unit School District No. 433 (1989), 183 Ill. App. 3d 316, 538 N. E.2d 1350, to support its proposition. However, we find a 0.1% loss in tax revenue and the 0.19% loss in assessed valuation to be de minimis and thus an insufficient basis for denying plaintiffs’ petition. See Carver, 146 Ill. 2d at 356-57, 586 N.E.2d at 1277-78 (finding a loss of one-half of 1% in assessed valuation or between $1,300 and $1,500 in property tax revenues de minimis); Bowman, 16 Ill. App. 3d at 1086, 307 N.E.2d at 422 (finding a depletion of less than one-half of 1% of the losing district’s assessed valuation to be de minimis)-, Phillips v. Special Hearing Board (1986), 154 Ill. App. 3d 799, 803, 504 N.E.2d 1251, 1254 (holding a yearly loss of $123,520 or 0.13% of the district’s budget was a minimal amount); Davis v. Regional Board of School Trustees of Madison County, Worden Unit School District No. 16 (1987), 155 Ill. App. 3d 185, 188-89, 507 N.E.2d 1352, 1354 (maintaining a 0.3% loss in the district’s total receipts to be de minimis); cf. Oakdale, 12 Ill. 2d at 194, 145 N.E.2d at 738 (reversing the granting of the petition where the detachment would have depleted appellants’ districts of 10% and 20% of their assessed valuations).

The record contains no evidence showing that the loss of $2,081 will render Lowpoint-Washburn financially unsound or that the detachment would affect that district’s ability to meet State standards of recognition. Moreover, there was no evidence presented relating to whether the maximum tax rate was being levied by the Lowpoint-Washbum district.

We further agree with plaintiffs that denying the petition for detachment cannot be based on any possible precedent this case may set for future detachment petitions. See Richey v. County Board of School Trustees (1973), 13 Ill. App. 3d 68, 70, 299 N.E.2d 609, 610; Wheeler v. County Board of School Trustees (1965), 62 Ill. App. 2d 467, 476, 210 N.E.2d 609, 613 (speculation cannot be the basis for denying detachment petition); Davis, 155 Ill. App. 3d at 190, 507 N.E.2d at 1355 (a detachment petition cannot be denied because of the possibility of setting a precedent); Eble v. Hamilton (1977), 52 Ill. App. 3d 550, 553, 367 N.E.2d 788, 790 (petition cannot be denied because of the possibility of setting a precedent).

Because the Regional Board made no findings of fact, the record does not reveal on what factors it relied in denying the petition. To the extent that the Regional Board used the loss in tax revenue and the impact of its ruling on this detachment petition on future detachment proceedings as bases for denying the petition, it erred.

We agree with plaintiffs that because detachment would not result in a substantial detriment to the detaching district, the decision regarding their detachment petition should turn on the educational welfare of the students in the detachment area — all of whom happen to be plaintiffs’ children. When so examined, we find the Regional Board’s decision clearly contrary to the manifest weight of the evidence. The evidence overwhelmingly supports plaintiffs’ position that the educational welfare of the students in the detachment area would be enhanced by detachment and that more than personal preference and convenience is at stake. The children would benefit from the shorter distances they would have to travel to school. (Bowman, 16 Ill. App. 3d at 1087, 307 N.E.2d at 423; Jonesboro, 86 Ill. App. 3d at 233-34, 407 N.E.2d at 1086.) They would further benefit from their strong identification and association with Metamora and the Metamora school district. They have friends in the district and participate in community and school activities. They also obtain needed medical services in Metamora. Moreover, plaintiffs have social and economic ties to Metamora, and no demonstrated ties to Lowpoint-Washbum. The detachment area is part of a community of interest with Metamora, and development of the “whole child” would be fostered by detachment. In Burnidge v. County Board of School Trustees (1960), 25 Ill. App. 2d 503, 509-10, 167 N.E.2d 21, 24, the court explained the matter as follows:

“[A]n identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area.”

The fact that petitioners moved into the area knowing it was in the Lowpoint-Washbum school district does not diminish their eligibility to have their petition granted. Eble, 52 Ill. App. 3d at 553, 367 N.E.2d at 790; see also Jonesboro, 86 Ill. App. 3d at 232-34, 407 N.E.2d at 1085-86.

Further, Metamora school district is larger and offers a wider curriculum. It also offers extracurricular activities in which plaintiffs’ children wish to participate, whereas Lowpoint-Washbum does not offer those same activities. Metamora also has facilities not available at Lowpoint-Washbum and separate buildings for its grade and high schools. Although Metamora offers more courses, extracurricular activities, and facilities than Lowpoint-Washbum, we emphasize that this record does not show that Lowpoint-Washburn could not provide a quality education to plaintiffs’ children. However, whether Lowpoint-Washbum could provide a quality education to plaintiffs’ children is not the issue before us; instead, on this record, the issue is whether plaintiffs’ petition should have been granted consistent with the best interests of the educational welfare of the children involved. In our view, the answer is emphatically yes. We conclude by noting that the evidence in this record supporting plaintiffs’ petition is considerably stronger than the evidence presented by petitioners for detachment in any of the cases we have cited herein. Thus, we find the decision of the Regional Board is contrary to the manifest weight of the evidence.

III. Conclusion

For the reasons stated, we reverse the order of the circuit court and of the Regional Board and remand to the Regional Board with directions to enter an order consistent with this opinion.

Reversed and remanded with directions.

McCULLOUGH and COOK, JJ., concur.


author: JUSTICE COOK

text:
    THE PEOPLE ex rel. DEANA MASSEY, Plaintiff-Appellant, v. TROY E. JONES, Defendant-Appellee.
    Fourth District
    No. 4—91—0610
    Opinion filed August 24, 1992.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff State of Illinois appeals from the trial court’s entry of an order of withholding against defendant Troy Jones, alleging that the court erred when it refused to include a delinquency amount in that order. We reverse and remand with instructions to include such an amount.

Plaintiff filed a petition to establish parentage and support of relator’s child, Tinisha Jones. Defendant admitted he is the father, and the court entered a consent order of parentage. Since defendant was unemployed at the time of hearing, his obligations regarding child support and medical insurance were reserved. When plaintiff later learned defendant had become employed, plaintiff filed a petition requesting that the circuit court of Macon County enter a child support order against defendant and that an order for withholding be directed to defendant’s employer. The court ordered defendant to pay $30 per week in current support. The court entered an order of withholding directing any payor of the defendant to withhold $30 per week for current child support, but refused plaintiff’s request to include an amount to be withheld toward a potential delinquency. No delinquency existed at the time of the order.

Plaintiff filed a motion to reconsider the order of withholding for its failure to specify an amount to be withheld should a delinquency occur. The judge denied the motion, and this appeal followed. The defendant, as appellee, has not filed a brief; however, we are able to decide the merits of this appeal without the aid of an appellee’s brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

As does the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 706.1), the Illinois Parentage Act of 1984 (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.) provides a number of remedies, in part mandated by Federal law, designed to improve child support enforcement. The relevant statutory provision, section 20 of the Act, requires that when an order of support is entered the court shall enter a separate order of withholding directing the payor (employer) of the obligor (one who owes support) to withhold the amount of support and an additional amount in the event of delinquency, and pay those amounts over to the public office (usually the circuit clerk or the Illinois Department of Public Aid), to be transmitted to the obligee (one entitled to support) as appropriate. Section 20 of the Act covers in great detail such subjects as exemptions, the duties of the payor, and enforcement. More specifically section 20 of the Act provides:

“(B) Entry of an Order for Withholding. ***
* aft *
(3) The order for withholding shall:
(a) direct any payor to withhold a dollar amount equal to the order for support; and
(b) direct any payor to withhold an additional dollar amount, not less than 20% of the order for support, until payment in full of any delinquency stated in the notice of delinquency provided for in subsection (C) or (F) of this Section.” (Ill. Rev. Stat. 1989, ch. 40, pars. 2520(B)(3)(a), (B)(3)(b).)

According to the terms of the Act, all orders of support entered by the trial court must be accompanied by a separate order for withholding which takes effect immediately, unless the parties enter into an alternative court-approved agreement. Ill. Rev. Stat. 1989, ch. 40, par. 2520(B); see In re Marriage of Wyant (1990), 197 Ill. App. 3d 538, 541-42, 554 N.E.2d 782, 784.

The trial court viewed section 20 of the Act, which requires the delinquency amount be specified when the withholding order is entered, as interfering with its prerogative in entering orders. In the opinion of the trial court, designation of a specific additional amount to be withheld in the event of delinquency was an improper anticipatory order. The trial court suggested that under the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.) “once the Court determines that the procedures concerning delinquencies have been met, then the order for withholding (including the then existing delinquency) shall be issued.” (Emphasis in original.) Finally, the trial court observed that the statute requiring designation of a delinquency amount provided the amount would be “an additional dollar amount, not less than 20% of the order for support” (Ill. Rev. Stat. 1989, ch. 40, par. 2520(B)(3)(b)), and designation of an amount greater than 20% was “a decision for the Court, not for [the Illinois Department of Public Aid].”

The argument that courts determine what should be contained in court orders, and that the legislature has no say in the matter, was definitively rejected in People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 285, 529 N.E.2d 542, 551, where the procedural requirements of section 20 were held not to be an unconstitutional legislative encroachment upon the judiciary. (Cf. People v. Davis (1982), 93 Ill. 2d 155, 160-61, 442 N.E.2d 855, 857 (statute requiring that judge imposing sentence specify the reasons that led to his sentencing determination attempts to dictate the actual content of the judge’s pronouncement of sentence; to construe that statute as mandatory would permit a legislative infringement upon the exercise of the judicial function).) The legislature may not tell the courts how contested facts are to be decided, but it may tell the courts what the consequences of a particular finding of fact shall be. Instead of requiring the court to include a delinquency amount in its withholding order, the legislature could have made that portion of section 20 directly binding on payors. The advantage of involving the court is flexibility: if a delinquency amount in excess of 20% of the support order is desirable, the court is in a position to order it. We find nothing in the statute which allows the Illinois Department of Public Aid, as opposed to the court, to designate amounts in excess of 20% of the support order.

The plain language of the Act indicates that the court must designate the payment amount for a potential delinquency at the time the order for withholding is entered; this aspect of the withholding order is contingent in nature, i.e., such an order shall direct and specify such an additional amount but its deduction does not commence unless and until a delinquency occurs. We find no statutory language allowing entry of an order of withholding when the court determines it is appropriate. Specifically, the statute states that the court “shall” direct the payor to withhold an “additional dollar amount” until payment in full of any subsequent delinquency. (Ill. Rev. Stat. 1989, ch. 40, par. 2520(B)(3)(b).) In interpreting section 20(B) of the Act, use of the word “shall” indicates a mandatory obligation unless the statute indicates otherwise. Sheppard, 124 Ill. 2d at 274, 529 N.E.2d at 546; see also In re Marriage of Bergman (1989), 183 Ill. App. 3d 897, 539 N.E.2d 872 (a case decided prior to the 1989 statutory amendments holding the trial court has no discretion to refuse to issue an order for withholding once an obligor becomes delinquent).

Our General Assembly complied with the Federal mandate in enacting the Act. (Sheppard, 124 Ill. 2d at 271, 529 N.E.2d at 545.) Requiring the trial court to enter a delinquency amount comports with the intentions of the Federal statute. Where, as here, a custodial parent seeks support enforcement through a State’s agency, the procedure for income withholding must be triggered whenever the absent parent fails to make payments for one month’s support. (Sheppard, 124 Ill. 2d at 271, 529 N.E.2d at 545, citing 45 C.F.R. §§303.100(a)(4), (b)(l) (1986).) Federal regulations also state that withholding “ ‘must occur without the need for any amendment to the support order *** or for any further action *** by the court or other entity which issued [it].’ ” Sheppard, 124 Ill. 2d at 271, 529 N.E.2d at 545, quoting 42 U.S.C. §666(b)(2) (Supp. III 1985), and further citing 45 C.F.R. §303.100(a)(4) (1986).

Although support orders generally may not anticipate future events and must be based on present ability to pay (In re Marriage of Moore (1983), 117 Ill. App. 3d 206, 209, 453 N.E.2d 102, 105; Coons v. Wilder (1981), 93 Ill. App. 3d 127, 134, 416 N.E.2d 785, 791-92), the value of fixed guidelines has been recognized and their validity upheld. (See Carnes v. Dressen (1991), 215 Ill. App. 3d 166, 574 N.E.2d 845; In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622; In re Marriage of Cook (1986), 147 Ill. App. 3d 134, 497 N.E.2d 1029.) The minimum 20% of the order of support as a delinquency amount is no more improper than the various percentage floors set by the guidelines for current support. The legislature has determined that all (or almost all) obligors should have an additional amount of not less than 20% of the child support ordered to be withheld from their income when they allow a delinquency to occur. That is a minimum, and further withholding may be awarded if the facts existing at the time of delinquency warrant it.

In the event of default plaintiff will still be obligated to follow the procedure outlined for notice of delinquency (Ill. Rev. Stat. 1989, ch. 40, par. 2520(C)), but the order will already provide for an amount to be taken out for each delinquent payment. This could lead to more expeditious payment of delinquent amounts. In those few cases where a 20% delinquency withholding would be excessive, the obligor has the right to challenge any determination through the courts and to have withholding cancelled or modified. Sheppard, 124 Ill. 2d at 276, 529 N.E.2d at 547.

For the foregoing reasons, we reverse and remand to the trial court with instructions to enter an additional dollar amount for any potential delinquency in the order of withholding.

Reversed and remanded.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. CURTIS, Defendant-Appellant.
    Fourth District
    No. 4—92—0024
    Opinion filed August 27, 1992.
    Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield, and M. Jeffrey Bergschneider, of Kansas City, Missouri, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant James Curtis pleaded guilty to unlawful possession with intent to deliver more than 15 grams but less than 100 grams of cocaine. He appeals from the 10-year sentence imposed, and argues the sentence is excessive. He also argues he is entitled to an additional day of credit for time served before his conviction. The sentence imposed was not excessive, and we affirm.

In July 1991, defendant was indicted for one count of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1991, ch. 561/2, par. 1401(a)(2)(A)) and one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 561/2, par. 1402(a)(2)(A)).

Pursuant to an agreed disposition, defendant pleaded guilty to count I, a Class X felony punishable by 6 to 30 years’ imprisonment. The State agreed to dismiss count II and not file another Class X felony charge for an additional alleged unlawful delivery. The State also agreed to recommend defendant receive no more than 10 years’ imprisonment.

At the hearing, the trial judge fully explained the potential penalties for the offense for which defendant pleaded guilty. Defendant indicated he fully understood the potential penalties and was voluntarily pleading guilty. The trial judge imposed a 10-year sentence. Defense counsel timely filed a motion to reconsider the sentence, arguing the judge should have imposed only the minimum six-year term. The trial court judge refused to reduce the sentence.

Defendant argues the sentence imposed was excessive because the trial court judge did not properly consider the following mitigating factors: (1) his actions did not cause or threaten serious physical harm to another; (2) his illegal activity resulted from his previously being diagnosed with Hodgkin’s disease, thereby he was unable to work steadily because he was receiving chemotherapy; (3) he had no prior juvenile or adult criminal record; (4) his statements indicated he was unlikely to commit another crime; (5) the term imposed will endanger his physical condition; (6) he cooperated with authorities; and (7) the trial judge did not adequately consider his rehabilitative potential.

The State contends the sentence was not excessive because defendant received it due to a negotiated agreement. It also argues the record indicates the trial court judge adequately considered the mitigating factors.

The trial judge fully explained to defendant the ramifications of pleading guilty. The State informed the court it agreed to seek not more than a 10-year term of imprisonment. Defense counsel responded that defendant’s understanding of the plea agreement was consistent with the State’s. Defendant was fully aware he could receive a 10-year sentence. Moreover, the sentence imposed by a trial judge will not be overturned absent an abuse of discretion. The trial judge’s ruling is entitled to great deference because he is better able to make a reasoned decision based on firsthand considerations of the pertinent aggravating and mitigating factors. (People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Bernotas (1991), 215 Ill. App. 3d 371, 376, 574 N.E.2d 1236, 1239.) The sentence imposed was not excessive.

The record shows the trial judge considered the mitigating factors about which defendant complains. These factors were delineated by defense counsel before sentence was imposed. After arguments, the trial judge indicated he was aware of the specific factors he was bound to consider and noted counsel had aptly outlined these.

A sentencing judge is presumed to have considered the relevant factors absent a contrary showing. (People v. Clark (1991), 207 Ill. App. 3d 439, 457, 565 N.E.2d 1373, 1385; People v. Bradney (1988), 170 Ill. App. 3d 839, 868, 525 N.E.2d 112, 131.) However, we need not rely on this principle because the trial judge stated he considered the relevant factors. In addition, no evidence exists to the contrary.

Defendant is mistaken as to the applicability of the first mitigating factor he advances. His actions clearly threatened and may have caused serious physical harm to others. As the trial judge noted, dealing drugs poses serious potential harm. Defense counsel conceded that although defendant’s illegal conduct resulted from his illness, this was not an excuse for his conduct. In addition, although defendant had no previous juvenile or adult convictions, he had been dealing drugs since November 1989, by purchasing drugs in large amounts in Chicago and selling them to 13 street-level dealers who distributed them further. He also sold drugs between the time of his arrest in March 1991 and his later arrest on July 8, 1991. Defendant also indicated to police on the day of his arrest that he owned five vehicles, some of which were paid for with drug and gambling profits. The police also found $2,200 in cash at defendant’s home the day of his arrest. This is not a portrayal of one who is dealing drugs merely to pay for necessities.

Defendant contends his statement to the trial judge suggests he was unlikely to commit another crime. He also cooperated with police officials after his arrest. However, these considerations are not controlling. The trial judge balanced all relevant factors. His statement to the trial judge was made only after he was apprehended for dealing sizeable quantities of cocaine. His argument the 10-year prison term will endanger his physical health is not supported by the record, which indicates his condition of Hodgkin’s disease is in remission. Furthermore, as the State notes, there is no evidence that imprisonment would adversely affect his condition.

Defendant’s argument the trial judge did not properly consider his rehabilitation potential also fails. The judge indicated he considered each of the mitigating factors. However, he also considered the extent of defendant’s involvement in the sale and distribution of cocaine and the length of time he was involved. The judge did not abuse his discretion by imposing a 10-year term on defendant. Defendant could have received a significantly longer term if he had not entered into a plea agreement. Considering the length and depth of his involvement in the sale and distribution of cocaine, a 10-year term was appropriate.

Defendant next argues he is entitled to an additional day of credit against his sentence because he was in custody on March 29, 1991, the day he was arrested. The State agrees. Section 5—8—7(b) of the Unified Code of Corrections provides that a defendant “shall be given credit *** for time spent in custody as a result of the offense for which the sentence was imposed.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—7(b).) This credit applies where defendant is in custody for any part of the day. (People v. Hutchcraft (1991), 215 Ill. App. 3d 533, 534, 574 N.E.2d 1337, 1337; People v. Compton (1990), 193 Ill. App. 3d 896, 904, 550 N.E.2d 640, 645.) The record supports defendant’s claim he was in custody on that day. However, defendant raises this issue for the first time on appeal. The presentence investigation specifically indicated defendant had spent 120 days in custody, and that is the amount with which he was credited by the sentencing order signed by the judge and filed on November 4, the same day as the sentencing. The motion to reconsider filed on November 7 makes no reference to or complaint about credit due for time served.

We are thus presented with an error that is ever more common. We have recently determined an error in computing credit is not waived by the failure of the defendant to call the error to the trial court’s attention. (People v. Donnelly (1992), 226 Ill. App. 3d 771, 589 N.E.2d 975.) However, defendants who fail to challenge their eligibility for Class X sentencing, based on the commission dates of their prior felonies at their sentencing hearings, have been held to have waived the issue by our supreme court. People v. Williams (1992), 149 Ill. 2d 467.

A sentencing hearing is a significant part of the trial process. The presentence report is a critical document. The information in a presentence report may be relied upon by the court, and the parties bear the responsibility of calling any inaccuracy to the court’s attention. (See People v. Powell (1990), 199 Ill. App. 3d 291, 294-95, 556 N.E.2d 896, 898.) The vigorous advocacy of counsel in negotiating a plea or defending at trial should not wane at sentencing. Both the State’s Attorney and defense counsel have an obligation to assist the court, and both are obligated to make sure the defendant receives neither more nor less than the time credit to which he is entitled. We see little justification or explanation for errors in computing such credit. However, our decision in Donnelly controls and defendant is entitled to an additional day of credit.

The judgment of the trial court is affirmed and the cause is remanded for amendment of the sentencing order to award defendant an additional day of credit against the sentence imposed.

Affirmed and remanded with directions.

McCULLOUGH and COOK, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEXANDER OSBORNE, Defendant-Appellant.
    Fourth District
    No. 4—92—0147
    Opinion filed August 27, 1992.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On November 5, 1991, the circuit court of Livingston County entered judgment on a jury verdict finding defendant Alexander Osborne guilty of unlawful possession of a weapon by a person in the custody of the Department of Corrections (DOC) (Ill. Rev. Stat. 1989, ch. 38, par. 24—1.1(b)). He was subsequently sentenced to a term of eight years’ imprisonment to run consecutively to a term of imprisonment he was currently serving at the Pontiac Correctional Center (Pontiac). Defendant appeals his sentence, primarily contending the circuit court improperly sentenced him as a Class X offender when (1) he did not receive notice in the indictment that the State was allegedly seeking a Class X sentence; and (2) he was ineligible for sentencing under the Class X provision. In addition, defendant maintains the court improperly used his prior felony convictions twice to doubly enhance his sentence. We conclude defendant was not sentenced as a Class X offender for reasons we will discuss; therefore, we affirm the sentence by the circuit court.

Ordinarily, unlawful possession of a weapon by a person in the custody of the DOC is a Class 1 felony (Ill. Rev. Stat. 1991, ch. 38, par. 24—1.1(d)), punishable by not less than a term of 4 years and not more than a term of 15 years’ imprisonment (Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—l(a)(4)). However, a defendant is eligible for sentencing under the Class X provision set forth in section 5—5—3(c)(8) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—3(c)(8)), when, among other things, he has had two prior Class 2 or greater felony convictions, and the commission and conviction dates occurred in the chronological order set forth in the Class X provision. The Class X offender is subject to an enhanced sentence of a term of not less than 6 years and a term of not more than 30 years’ imprisonment. Ill. Rev. Stat. 1991, ch. 38, par. 1005—8—l(a)(3).

Here, defendant was charged by indictment, which alleged he “possessed a dagger-like weapon while confined in the Pontiac Correctional Center *** in violation of Section 24—1.1(b) ***. (Class 1 Felony ***.)” At the sentencing hearing the court acknowledged receiving defendant’s presentence report, and, although given the opportunity, defendant did not contest the accuracy of the report, other than alleging a few minor errors regarding his name and military history. The prosecutor commented briefly, and based on defendant’s criminal history, he recommended a sentence of 12 years’ imprisonment. The prosecutor neither at that time nor any other time sought to have defendant sentenced as a Class X offender.

Defense counsel, when suggesting defendant should receive the minimum sentence, mentioned that defendant was eligible for sentencing as a Class X offender due to two prior Class 2 or greater felony convictions. The court then allowed defendant to comment at length prior to imposing the eight-year sentence.

The only indication that defendant was being sentenced as a Class X offender was a brief statement by the court that, “[w]ell, the long and the short of it is, the minimum is six, maximum could be up to thirty or far beyond.” As already mentioned, the sentencing range for a Class X offender is not less than 6 and not more than 30 years’ imprisonment. The State argues the court merely “parroted” the Class X comment initiated by defense counsel in an effort to discipline the defendant for interrupting. However, the record indicates that the court specifically granted defendant a lenient sentence because he was so cooperative during all the proceedings. The court’s comment on the possible range of sentence was apparently an attempt to bring defendant’s comments to a close by advising him that, regardless of his reasons for his past criminal conduct, he had to be sentenced for the instant conviction.

More indicative of the court’s intention was its remaining comment prior to oral pronouncement of sentence, as follows:

“Normally, with this record and the seriousness of that offense, possessing a shank, I would give a sentence normally of 12 to 15 years or more. I guess just for the simple fact it bothers me that you are a person that could have made so much of your life, but you have just thrown it away. And I am appreciative of the fact you’ve never gave [sic] the court any hassle. *** So I am going to sentence you to eight years in prison consecutive to your current sentence. *** And I know, still, you don’t like eight years. Believe me, that is a lot less than I would normally impose in this type of case.”

Although on the surface there is some indication that the court intended to impose a Class X sentence, the court’s comments and the record as a whole indicate that defendant was not sentenced as a Class X offender. The court specifically stated that normally, based on the seriousness of the offense of possession of a “shank” while confined in DOC, it would sentence defendant to a term of 12 to 15 years’ imprisonment. Thus, the court was speaking of sentences which would be given to offenders who would not necessarily be eligible to be treated as a Class X offender, and then imposing a sentence here much lighter than he would normally give those offenders. The court’s focus was clearly on the seriousness of the instant offense and not upon any other convictions which would qualify defendant for Class X status. Those other convictions included one each for murder, voluntary manslaughter, and unlawful use of weapons and two for armed robbery. If the court was then intending to impose a Class X sentence, the court would not likely have completely omitted reference to those other convictions. Other than the court’s brief comment concerning the range of sentence, the defense counsel interjected the only suggestion that defendant was eligible for sentencing under the Class X provision.

Furthermore, the court’s intention to sentence defendant based on a Class 1 felony is evidenced by its order and judgment on sentence dated and filed on the same day as the oral pronouncement of sentence, which refers to the commission of the instant offense as a Class 1 felony. The oral pronouncement of sentence and the written sentence order are considered one transaction when occurring on the same day. People v. Tackett (1985), 130 Ill. App. 3d 347, 474 N.E.2d 451.

Defendant maintains that the court’s order and judgment on sentence has no bearing on whether he was sentenced as a Class X offender because the language of the Class X provision reflects that the provision only enhances the sentence to a Class X sentence, and does not change the class of the offense for which defendant was convicted. We disagree. The Class X provision refers to a Class X offender and Class X is listed as a felony classification in section 5—5— l(b)(2) of the Corrections Code. (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—l(b)(2).) If the legislature intended to only enhance the sentence without elevating the class of the felony to a Class X felony, the Class X provision would not classify an eligible defendant as a Class X offender. Moreover, defendant has already admitted the Class X provision elevates the class by previously arguing that the State is required to give notice in the charging instrument of its intent to seek a Class X sentence. Section 111—3(c) of the Code of Criminal Procedure of 1963 (Code) does not require notice in the event of an “increase in the sentence applied within the same level of classification of offense.” Ill. Rev. Stat. 1991, ch. 38, par. 111—3(c).

Accordingly, based on our conclusion defendant was not sentenced as a Class X offender, there is no merit in defendant’s contention that his sentence must be vacated and the cause remanded for new sentencing because the indictment charging him with the instant offense failed to give him notice of the State’s alleged intention to seek a Class X sentence as required by section 111—3(c) of the Code. Similarly, there is no merit in defendant’s claim that error occurred when the State failed to offer the commission dates of the prior Class 2 or greater felony convictions to prove his eligibility under the Class X provision. Assuming defendant was sentenced under the Class X provision, his presentence report provided a proper basis to determine his eligibility under the Class X provision. Any deficiency of the report regarding the omission of the commission dates must be first brought to the attention of the sentencing court, and failure to do so results in waiver for purposes of appeal. People v. Williams (1992), 149 Ill. 2d 467.

We note that defendant correctly points out he was ineligible for sentencing under the Class X provision when his presentence report reflected that the commission and conviction dates of his prior felonies did not occur in the chronological order mandated by the Class X provision. The Class X provision provides, in part, as follows:

“This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1991, ch. 38, par. 1005—5-3(c)(8).

The decisions arising from defendant’s prior felony convictions indicate that the first felony that can be considered for purposes of sentencing under the Class X provision was committed on March 3, 1985, and defendant was convicted of that offense on December 11, 1986. The second felony was committed on March 23, 1985, before defendant was convicted of the first felony offense; therefore, defendant was not convicted of the first offense before committing the second offense, as required by the statute.

Finally, defendant maintains the court used his prior felony convictions twice, thereby doubly enhancing his sentence, initially to a Class X felony and then to a term of imprisonment beyond the minimum Class X sentence. In People v. Owens (1990), 205 Ill. App. 3d 43, 45, 563 N.E.2d 75, 77, the appellate court concluded that the circuit court erred in using that defendant’s two prior felony convictions to elevate his offense to a Class X felony, in addition to using those same convictions as aggravating factors in sentencing him to a sentence beyond the minimum Class X sentence. Here, assuming defendant was sentenced under the Class X provision, we deem Owens distinguishable because, in Owens, that defendant’s prior convictions were the only aggravating factors present. Here, the court clearly based defendant’s sentence on the seriousness of the offense rather than on his prior convictions. In any event, we have already decided defendant was not sentenced as a Class X offender, and therefore, the court could properly consider defendant’s criminal record as an aggravating factor.

For the above-mentioned reasons, we affirm.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    OPAL JOHNSON, Indiv. and as Special Adm’r for the Estate of William Johnson, Deceased, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant (Brakegate, Ltd., et al., Defendants).
    Fourth District
    No. 4—92—0175
    Opinion filed August 27, 1992.

      Robert L. Martier, of Baker & Martier, of Chicago, and Donald Francis Donovan and Geoffrey H. Coll, both of Debevoise & Plimpton, of New York, New York, for appellant.
    James Walker, Ltd., of Bloomington, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Owens-Corning Fiberglas Corporation (OCF or defendant) appeals the default judgment entered against it for noncompliance with a Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)) notice, compelling it to produce its medical director and a member of its board of directors as witnesses at trial; the judgment entered against it; and the order denying its motion for post-trial relief. Defendant argues (1) the trial court lacked authority under Rule 237(b) to sanction it for failing to produce witnesses who are not individually subject to Illinois process; (2) the sanctions entered against it exceeded the permissible scope of Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)); and (3) the trial court erred in giving a negative inference instruction. We affirm.

On September 19, 1989, plaintiff, in her individual capacity and as special administrator of the estate of William Johnson, deceased, filed a 12-count complaint in the circuit court of McLean County against defendant OCF, and other defendants not parties to this appeal, seeking damages for injuries sustained due to the death of decedent. All defendants, except OCF, were dismissed as parties or default judgments were entered against them before trial. Counts V through XII of the complaint were directed at OCF. These counts alleged various theories of recovery including civil conspiracy (counts V and VI), murder (counts VII and X), intentional or fraudulent misrepresentation (counts VIII and XI), and battery (counts IX and XII). All counts, except count IX, were dismissed before trial.

Decedent was employed from 1951 to 1977 at the Bloomington, Illinois, plant of Unarco Industries, Inc., which OCF purchased in April 1970. Decedent died on November 27, 1987. The death certifícate indicated the cause of death was “chronic respiratory insufficiency,” “restrictive lung disease,” and “pulmonary asbestosis.” Decedent also suffered from “chronic renal failure,” a condition cited as contributing to his death but not related to the cause of death. An autopsy performed on decedent after the death certificate was signed disclosed decedent also had lung cancer.

The remaining count against defendant alleged that it committed a battery against decedent by intentionally causing his death by exposing him to asbestos. Plaintiff claimed decedent was exposed to asbestos while he worked at the plant and, as a result of his exposure, contracted asbestosis and lung cancer. She further averred that defendant knew exposure to asbestos caused asbestosis and malignancies, and it knew decedent would be exposed to asbestos and would die as a result. She also stated defendant’s purpose was to operate the plant using asbestos and asbestos products, and in doing so, defendant intended to cause great bodily harm to decedent. She contended defendant’s intentional conduct was the proximate cause of decedent’s death.

On October 15, 1991, plaintiff filed a request, pursuant to Rule 237(b) (134 Ill. 2d R. 237(b)), that defendant produce Dr. Jon Konzen, medical director of defendant; W.W. Boeschenstein, former chairman and chief executive officer of defendant and a current member of its board of directors; and various documents at trial. In response, Konzen and Boeschenstein filed a special and limited appearance and a motion for a protective order, contesting the court’s authority to assert personal jurisdiction over them and compel them to travel to Illinois to testify. Defendant concurrently filed a motion to quash plaintiff’s Rule 237(b) request insofar as it related to the production of Konzen and Boeschenstein at trial. It argued that plaintiff could not demonstrate good cause sufficient to justify the compelled appearance of these individuals, and the court lacked authority under the Illinois long-arm statute to compel them to appear. Defendant further argued that Rule 237(b) was unconstitutional on its face and as applied to Konzen and Boeschenstein because it violated due process in that it sought to compel the attendance of nonparty witnesses not subject to the jurisdiction of Illinois.

In response, plaintiff filed a motion to strike the special and limited appearance and motion for a protective order. The court subsequently struck the special and limited appearance and ordered defendant to produce the witnesses. The court agreed that it did not have the authority to compel them to come to Illinois to testify but that any “coercion” upon them to appear was the “economic coercion of [defendant]” and the desire to have their testimony heard in court. It further agreed due process applied to Rule 237(b), but determined no violation of due process occurred because the request was directed at defendant, over which the court had jurisdiction. The court also denied defendant’s motion to quash.

In light of these rulings, defendant sought leave to file an interlocutory appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), which the circuit court denied. The defendant then moved to stay the proceedings pending the filing of a petition for leave to file a complaint for writ of mandamus for a supervisory order in the Illinois Supreme Court. The circuit court also denied this motion. On November 4, 1991, defendant filed with the Illinois Supreme Court a motion for leave to file a complaint for an order of mandamus or prohibition, or in the alternative, for a supervisory order and an emergency motion for stay of proceedings pending disposition of defendant’s motion. The supreme court denied defendant’s emergency motion on November 5, 1991. (Konzen v. Caisley (Nov. 5, 1991), No. 72780 (Clerk’s order).) The supreme court denied defendant’s other motion on December 11, 1991. Owens-Corning Fiberglas Corp. v. Caisley (Dec. 11, 1991), No. 72788 (Clerk’s order).

At the pretrial hearing on November 7, 1991, defendant moved the circuit court to stay the trial pending a hearing upon its petitions in the supreme court. The court denied the motion. Defense counsel then advised the court that Konzen and Boeschenstein would not be appearing. Plaintiff moved to strike defendant’s pleading and for entry of default judgment as a sanction for noncompliance with the Rule 237(b) notice, leaving only the issue of damages for the jury to determine. In support plaintiff stated that if Konzen were there he would testify, inter alia, that (1) he became medical director of defendant in 1968; (2) he was asked to evaluate the Bloomington plant before defendant purchased it regarding asbestos; (3) he made an investigation of the plant after it was purchased and from the inspection determined that the amount of airborne asbestos in the plant was unacceptable; (4) he hired an industrial engineer to study the plant, and the study stated that “ ‘[t]his plant [was] grossly deficient. The industrial hygiene is totally inadequate. The airborne asbestos levels are excessive and certain to cause disease’ ”; (5) he made numerous trips to the plant until 1972, when asbestos was no longer used as an ingredient in the plant’s processes; (6) he knew asbestos levels in the plant* would cause disease and that the workers did not know that the level of asbestos to which they were exposed would cause disease; (7) he evaluated the health of decedent, and the evaluation showed decedent had asbestosis; (8) he knew no one told decedent that defendant knew he had asbestosis; and (9) the asbestos to which defendant exposed decedent caused decedent’s lung cancer.

Plaintiff further asserted that Boeschenstein would testify as follows: (1) as of 1970, he was senior vice-president of defendant; (2) he had knowledge defendant used asbestos in its products, and these products caused disease in the plant and in people using them; (3) Konzen told him the condition at the plant was certain to cause disease, but defendant decided to continue to operate the plant in the same manner, knowing the workers did not know the risk to which they were exposed; and (4) he was involved in evaluating the recommendations Konzen made for further improvements at the plant, but these improvements were not made and the level of airborne asbestos was even in excess of those which the government and defendant knew would cause lung cancer.

Defendant denied that either person would make these statements. It argued that plaintiff had no basis to link Konzen to causation issues and suggested that if the court were going to issue a sanction the sanction be limited to the issue of its liability. The court ordered defendant’s answer stricken, that a default judgment be entered, and that the case be tried only on the issue of damages. In so ruling, the court determined that it was due to the willfulness of defendant that Konzen and Boeschenstein did not appear, and, therefore, it was not unreasonable for the court to enter the sanctions that it did.

On November 12, 1991, plaintiff moved to bar defendant’s expert witness, Harry Demopolous, from testifying. Plaintiff contended that the only disclosed opinion Demopolous held was that “[decedent] did not die from a disease which can be reasonably related to any alleged exposure to asbestos while employed by [defendant].” Plaintiff maintained this opinion was irrelevant to any issue before the jury, since it was no longer disputed that defendant was liable for the death of decedent. Plaintiff also argued that she was being deprived of the chance to demonstrate through Konzen’s testimony that decedent would have lived for a long time. Defendant argued Demopolous’ testimony was relevant not to the issue of causation, but to decedent’s life expectancy for the purpose of determining damages.

Plaintiff also filed a motion in limine asking that the court preclude defendant from communicating to the jury that someone or something other than the wrongful conduct of the defendant was the cause of death of decedent and from communicating any measure of the effect of the asbestos or any other condition upon decedent’s health or life expectancy. The court allowed the motion in limine and also allowed plaintiff’s motion to exclude the testimony of Demopolous in part. The court held that Demopolous was permitted to testify only to diseases—other than those of the lung—which would reduce decedent’s life expectancy.

The trial proceeded on the issue of damages, and Dr. Harry De-mopolous testified regarding the extent to which decedent’s renal failure may have reduced his life expectancy. To rebut this testimony, plaintiff wished to call Konzen. Outside the presence of the jury, plaintiff called Konzen as a rebuttal witness, and defendant responded that he would not be available. In order to provide a basis for her argument that a negative inference could be drawn from Konzen’s refusal to appear, plaintiff requested that defendant stipulate to several things. Defendant agreed to stipulate that Konzen was the medical director of defendant but refused to stipulate that he had any information regarding the issue of damages. Since defendant refused to stipulate to all that plaintiff wanted, she stated she would make an offer of proof to lay a foundation for the court to give a negative inference instruction and for the jury to draw certain inferences. Plaintiff also requested the court to strike Demopolous’ testimony since defendant precluded her from rebutting it with Konzen’s. The court denied the request.

When the trial resumed the following day, plaintiff again requested that defendant produce Konzen so she could make her offer of proof in “question and answer form.” Defendant replied that it was not going to produce Konzen and that plaintiff had failed to demonstrate Konzen had any knowledge relating to decedent’s renal failure or his life expectancy. Plaintiff then made the following offer of proof, stating that Konzen would testify as follows: (1) he became the corporate medical director of OCF in 1968; (2) he became involved in a program of providing annual physical examinations for the employees at the Bloomington plant; (3) decedent’s first examination as defendant’s employee took place in 1970 by Dr. McNeely, and the reports of this examination were given to him; (4) McNeely and he determined that a further examination should be made of decedent, and those results were reported to him; (5) he was required to analyze the results of these annual physicals, and he did analyze and evaluate the results of decedent’s physicals administered from 1970 through 1977; (6) he analyzed and evaluated the health of decedent as a part of his job; (7) he made evaluations of legal claims against defendant, including claims arising out of asbestosis, and has made such an evaluation of this case; (8) decedent sustained lung cancer as a result of his exposure to asbestos during the time he worked for defendant; (9) his lung cancer was the cause of his death and his renal failure; (10) he is familiar with the treatment of renal failure and that individuals such as decedent, who responded well to dialysis, could be expected to live a long time when treatment is continued; and (11) the reason decedent died when he did was that his body was “overburdened by, among other things, the lung cancer and the effect that [it] had on the entirety of his body, including his renal disorder.”

Defendant objected to the offer of proof; the court ordered it received and recorded as part of the evidence in the case, but sustained the objection, and ordered that it not be submitted to the jury. In light of the court’s ruling, plaintiff requested that the court reconsider its ruling refusing to strike Demopolous’ testimony. The court again declined to strike this testimony.

Therefore the only evidence plaintiff presented in rebuttal was a stipulation which the court read to the jury and was included as plaintiff’s instruction No. 9. It stated: “Dr. Jon Konzen is currently the corporate medical director of [defendant]. He is in good health, and he is capable of traveling to Bloomington, Illinois[,] to testify. Defendant has refused to produce Dr. Konzen to testify in this case.” No evidence was submitted in surrebuttal, and the instruction conference resumed. At the instruction conference, the court, over the objection of defendant, granted plaintiff’s request that a “negative inference” instruction be given to the jury relating to the absence of Konzen.

The jury subsequently returned a verdict for plaintiff in the amount of $510,000, and the court entered judgment on the verdict against defendant OCF, and against defendants Brakegate, Ltd.; Cape Industries, PLC; Cape Asbestos Fiber, Ltd.; and EGNEP (Pty) Ltd. On December 23, 1991, defendant filed a post-trial motion for a judgment n.o.v., or in the alternative, for a new trial or a remittitur. On February 4, 1992, the court ruled that Rule 237(b) was not unconstitutional and did not violate the due process clause of the United States and Illinois Constitutions, nor was it unconstitutional as applied to defendant. The court further determined that the sanctions imposed were the only effective remedy for its noncompliance. Accordingly, the post-trial motion was denied. This appeal followed.

We first consider whether, in light of due process principles, the trial court lacked authority under Rule 237(b) to sanction a defendant for failure to produce witnesses not individually subject to Illinois process.

Rule 237(b) provides:

“The appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the trial of documents or tangible things. If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his appearance at the trial that are just, including payment of his reasonable expenses. Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” 134 Ill. 2d R. 237(b).

Defendant initially contends that this rule must be read to comport with principles of due process, and it is a violation of those principles to sanction a defendant for its failure to produce witnesses not subject to the personal jurisdiction of the court. Defendant argues that under Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302, the supreme court recognized the “fiduciary shield doctrine” and thereby established that a court could not obtain jurisdiction over an individual on the basis of the individual’s status as an employee of a defendant. Defendant further contends that Salvator v. Admiral Merchant’s Motor Freight (1988), 175 Ill. App. 3d 901, 530 N.E.2d 639, established that a court cannot compel an individual, who was not himself subject to the jurisdiction of a court, to appear as a witness because the court has jurisdiction over his employer. Based on these rulings, defendant maintains that since an individual’s status as an employee of a defendant cannot be relied on to compel the individual to appear as a witness, it follows that an individual’s employer may not be sanctioned for the individual’s failure to appear.

In the pending case, the record illustrates that Konzen and Boeschenstein were residents of Ohio; their principal place of business was in Ohio; and they had no personal contacts with Illinois, did not own property in the State or conduct business here, nor did they appear to have otherwise invoked the benefits and protections of Illinois law. The only association they had with Illinois was within the scope of their employment. The trial court recognized it did not have personal jurisdiction over them. However, this fact is of no avail to defendant. The order in this case was directed to the corporate defendant over which the trial court did have jurisdiction, not Konzen and Boeschenstein personally. This factor distinguishes Salvator, in which the order was specifically directed at the employee rather than the corporate defendant.

As long as the order is directed at the corporate defendant rather than the individual employees and directors, principles of due process are not violated, and a court may sanction a corporate defendant for its failure to produce its employees. Ultimately, it is the corporate defendant which forces its employees to submit to the jurisdiction of Illinois, not the court. A court has broad authority over a party for the effective administration of justice, and that authority includes the power to compel a party to produce its employees, officers, and directors at trial. While we realize Rule 237(b) may be subject to abuse, its application is under the control of the trial court and the rule is appropriately employed where, as in this case, there was sufficient evidence to establish its use was intended to elicit probative testimony rather than for harassment. Plaintiff showed good cause. Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194, 199, 378 N.E.2d 544, 547-48.

We next consider whether the sanctions entered against defendant for failing to produce the witnesses exceeded the permissible scope of Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)). Upon the failure to comply with a Rule 237(b) notice, a court “may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” (134 Ill. 2d R. 237(b).) In the present case, the court ordered defendant’s pleadings stricken and entered default judgment. On the issue of damages, the court restricted defendant to producing evidence relating to health conditions of the decedent, other than those of the lungs, which may have reduced his life expectancy. On appeal, defendant argues the trial court erred in defaulting it on issues relating to causation and damages because it went beyond the scope of the issues to which Konzen and Boeschenstein could have testified.

The imposition of sanctions under Rule 219(c) is a matter within the discretion of the trial court, and a reviewing court will uphold the trial court’s decision, absent an abuse of discretion. (Wegman v. Pratt (1991), 219 Ill. App. 3d 883, 891, 579 N.E.2d 1035, 1041; Palmer v. Minor (1991), 211 Ill. App. 3d 1083, 1086, 570 N.E.2d 774, 776.) Pleadings may be stricken “only when the stricken pleadings bear some reasonable relationship to the information withheld.” (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 197, 226 N.E.2d 6, 16.) The striking of an answer, thereby causing a default, is the most severe sanction a court can impose on a recalcitrant defendant, and such sanction is proper only in those cases where the actions of a party show deliberate, contumacious or unwarranted disregard of a court’s authority. Barnes v. Black & Decker Manufacturing Co. (1984), 135 Ill. App. 3d 700, 706, 481 N.E.2d 1200, 1204.

A review of the record reveals that defendant had ample opportunity to comply with plaintiff’s Rule 237(b) request but failed to do so. The court found this failure to produce the witnesses was willful and, accordingly, entered sanctions. The trial court did not abuse its discretion in entering sanctions. Although plaintiff did not depose Konzen and Boeschenstein, there was sufficient evidence in the record of the information plaintiff expected to elicit to support a finding that Konzen and Boeschenstein would have relevant information on these issues. (Soto v. E. W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 889, 452 N.E.2d 572, 579; Oakview, 61 Ill. App. 3d at 199, 378 N.E.2d at 547-48.) Although defendant asserted that Konzen and Boeschenstein did not possess any relevant information on the issue of causation, the record contains numerous documents to or from Konzen and Boeschenstein relating to potential health hazards of the plant’s operations; the health status of production employees; asbestos levels and exposure at the plant; and current and future medical programs and activities, including instituting a respiratory program, arranging to have chest X rays monitored by outside consultants, conducting medical evaluations of selected employees’ pulmonary status, and having individuals identified as having or possibly having asbestosis consult a chest specialist. This was sufficient information for the trial court to conclude that Konzen and Boeschenstein could have relevant information relating to this issue. Neither plaintiff nor the trial court was required to accept defendant’s denials that Konzen and Boeschenstein knew anything.

Further, the trial court did not err in limiting defendant’s evidence on the issue of damages. Defendant alleges that decedent left its employ 10 years before he died, and, therefore, Konzen would not have any information or personal knowledge regarding the impact of asbestosis on decedent’s life expectancy. The record illustrates, however, that Konzen was involved with assessing the in-plant environmental hazards and their effect on the employees, reviewing the medical conditions and examinations of employees relating to their exposure to asbestos, and establishing a medical procedure for examinations of employees suspected of having asbestosis. This evidence supports a finding that Konzen’s testimony could relate to the issue of damages so that the court’s holding limiting defendant’s evidence on this issue was not an abuse of discretion.

Finally, we address whether the trial court erred in giving a negative inference instruction to the jury. Plaintiff’s tendered jury instruction No. 7 was based on the Illinois Pattern Jury Instructions, Civil, No. 5.01 (Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (hereinafter IPI Civil 3d)). Plaintiff offered this instruction because he was unable to rebut Demopolous’ testimony with Konzen’s. Defendant argues the trial court erred in giving this instruction because Konzen could not offer any relevant information on the impact of decedent’s renal failure on his life expectancy. This contention is also without merit.

IPI Civil 3d No. 5.01 instructs that where a party fails to produce a witness within its power to produce, the jury may infer that the testimony of the witness would be adverse to that party. The adverse inference is available when (1) the witness was under the control of the party to be charged and could have been produced by reasonable diligence, (2) the witness was not equally available to the adverse party, (3) a reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him, and (4) no reasonable excuse for the failure to produce the witness has been shown. (Lewis v. Cotton Belt Route—St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 108-09, 576 N.E.2d 918, 930.) The court allowed the instruction by reasoning that Konzen was under defendant’s legal control and not equally available to plaintiff.

The giving of IPI Civil 3d No. 5.01 is within the sound discretion of the trial court, and a court of review should reverse only when a clear abuse of discretion appears from the record. (Betts v. Manville Personal Injury Settlement Trust (1992), 225 Ill. App. 3d 882, 901, 588 N.E.2d 1193, 1205; Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 201-02, 549 N.E.2d 1295, 1304; Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 1046-47, 460 N.E.2d 464, 468.) Before giving the instruction, the trial court must first determine whether, in all likelihood, the party would have produced the witness under the facts and circumstances of the case unless the testimony would be unfavorable. (Thompson, 193 Ill. App. 3d at 202, 549 N.E.2d at 1304; Tonarelli, 121 Ill. App. 3d at 1047, 460 N.E.2d at 468.) Where a witness who has knowledge of the facts and is accessible to a party is not called by a party, a presumption arises that his testimony would be adverse to that party and an instruction could or should be given to that effect upon request. (Tonarelli, 121 Ill. App. 3d at 1047, 460 N.E.2d at 468.) The instruction is not warranted, however, when the unproduced witness’ testimony would be merely cumulative. Chuhak v. Chicago Transit Authority (1987), 152 Ill. App. 3d 480, 489, 504 N.E.2d 875, 881; Thompson, 193 Ill. App. 3d at 202, 549 N.E.2d at 1304.

Assuming arguendo an error occurred, an error in instructing the jury must have resulted in prejudice to the appealing party for a reversal to be warranted. (Brazier v. Kontos (1987), 160 Ill. App. 3d 177, 184, 513 N.E.2d 152, 157; Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1088, 560 N.E.2d 969, 973; Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 188-89, 498 N.E.2d 522, 527.) Defendant merely asserts in its brief that “prejudicial error” occurred; it provides no discussion. It is unclear from the record whether the jury in fact found these four factors existed warranting a negative inference to be drawn from the fact that defendant failed to produce Konzen, or took this into consideration when determining damages. Even if the trial court abused its discretion in giving the instruction, no prejudice has been shown. Consequently, any alleged error in instructing the jury does not warrant reversal.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.