author: JUSTICE JIGANTI

text:
      In re MARRIAGE OF STANLEY T. KUSPER, Petitioner-Appellee, and EVELYN KUSPER, Respondent-Appellant.
    First District (4th Division)
    No. 1—88—1785
    Opinion filed February 22, 1990.
    Rehearing denied April 26, 1990.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Howard A. London, of counsel), for appellant.
    Schiller, Du Canto & Fleck, Ltd., of Chicago (Donald C. Schiller and Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The trial court entered a judgment dissolving the marriage of Stanley and Evelyn Kusper. The court denied Evelyn’s post-trial motion for reconsideration, and she follows with this appeal. Evelyn is contesting the amount of the maintenance award, the court’s disallowance of her exhibit into evidence, and the order of the court directing her to pay one-half of her attorney fees. She is not contesting the property award.

At the time the court ordered the dissolution of their marriage, March 16, 1988, Evelyn Kusper was 50 years old and Stanley was 53 years old. They had been married since November of 1958 and had three adult sons. Evelyn has not worked outside the home since her children were born. In 1986, she received a degree of bachelor of arts psychology, social welfare. It is Evelyn’s intention to pursue a master’s degree in social work. She testified that she could complete the master's degree in three years of part-time coursework. According to Evelyn, after she obtains a master's degree, if she finds employment, she will probably be able to earn $18,000 to $19,000 per year. Stanley’s income, as stated in the parties’ income tax returns for the years 1981 to 1986, ranged from $92,771 to $131,163 for 1986. There is no testimony specifying the amount of Stanley’s income for 1987; however, Stanley testified that 1987 was an extraordinarily profitable year for his law firm.

The court awarded each of the parties approximately one-half of the marital assets. Evelyn’s share of the stipulated value of the property award was approximately $594,000. Included in Evelyn's award were the marital home unencumbered by mortgage, the home furnishings, and approximately $327,000 in investable income. Evelyn’s award also included $18,000 in nonmarital assets. The court awarded Evelyn $500 per month of maintenance for a period of 36 months for the purpose of completing her education.

Evelyn asserts that in determining her maintenance award, the court underestimated her expenses and overestimated her income. Evelyn proposes that the appropriate maintenance is $60,000 a year, reviewable after five years. The court directed Evelyn to pay one-half of her attorney fees, a finding Evelyn also contests on appeal.

In consideration of the maintenance award, the parties each offered testimony relating to marital and Evelyn’s personal expenses for the years 1984 through 1987, taking into account Stanley’s move from the marital residence in February of 1986. Stanley admitted that his testimony did not present a complete summary of Evelyn’s expenses as he was not aware of expenditures in certain categories which Evelyn paid for in cash. The total amount of expenses Stanley testified to for Evelyn varies between $14,923 to $17,914 per year. Stanley’s argument is that taking everything into account, Evelyn’s annual expenses during the marriage did not exceed $20,000 per year.

Evelyn’s testimony included expenses Stanley did not testify to. Evelyn attests that in 1986, in addition to the sums Stanley testified to, she had to spend $6,825 from an inheritance in order to pay bills and living expenses. When Evelyn’s additional expenses are added to the expenses Stanley testified to, her expenditures for the years 1985 and 1986 total $24,421 and $24,233, respectively. Evelyn testified that she incurred some expenses that she paid for with cash and for which she has no receipts or statements.

Evelyn also testified to certain anticipated needs which she has been unable to afford. Evelyn indicated the house that she received as part of the property settlement was in need of certain repairs, including a new furnace and a new roof, plumbing repairs, and furniture and carpet replacement. Additionally, Evelyn anticipates a heretofore unnecessary need for professional clothing once she embarks on her further education and career. Evelyn testified that tuition expenses to obtain her master’s degree will be approximately $10,000 per year for three years.

The parties also testified that during the marriage, Stanley’s medical insurance covered Evelyn’s medical expenses and that dental care was provided by a family friend. Evelyn will no longer be a party to Stanley’s insurance policy, and she is uncertain whether Stanley’s friend will still provide her with dental care. Up until a few years ago, ' Evelyn accompanied Stanley on a regular basis to the family vacation spot in Michigan. Stanley’s father left the vacation home to Stanley, and it was awarded to him as nonmarital property in the judgment of dissolution. Similarly, the family possessed season tickets to Bears games that were awarded to Stanley in the settlement. Evelyn testified that up until the time the marriage began to disintegrate, she enjoyed going to the games with Stanley. The parties also testified they had lived a frugal life that had enabled them to accumulate savings.

Evelyn presented to the court an exhibit in the form of an affidavit summarizing in specific amounts the expenses she expects to incur in lieu of or in addition to those incurred during the marriage. Evelyn contends that the trial court erred in refusing to allow the introduction of her exhibit into evidence.

Whether evidence is to be admitted is a matter largely within the discretion of the trial court, and the court’s decision will not be reversed unless such discretion is clearly abused. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327.) In the present case, Evelyn did not testify to many of the amounts or categories included in the exhibit but relied solely on the exhibit as evidence of her reasonable needs in these categories. Evelyn had the opportunity to testify in detail about her reasonable needs, and as she points out, she was “clearly competent” to testify to the items set forth in the exhibit. Evelyn was not prejudiced by the trial court’s exclusion of the affidavit. We do not believe the trial court abused its discretion in disallowing the exhibit.

Evelyn has investable income of approximately $327,000. Stanley argued to the trial court that if Evelyn invested this amount at 8% interest, she would be able to earn investment income of at least $23,840 a year. Included in Evelyn’s investable income is her share of a note receivable that the court distributed as part of the marital property settlement. The receivable, known as the Cummings note, is a secured promissory note with a guaranteed 15% rate of annual interest. At the time of trial, the note had been overdue since February 11, 1985. The parties stipulated to the value of the note. Evelyn’s share comes to approximately $170,000. As of the time of her post-trial motion, Evelyn had not received any payment from the note. In her post-trial motion, and here on appeal, Evelyn argues that because she is unable to collect on the Cummings note, the court should not include the value of the note in calculating her annual investment income for the purposes of determining maintenance. Evelyn calculates that without the Cummings note, her investment income will be $12,489 per year.

We do not believe there is any error in including the value of the Cummings note in estimating Evelyn’s investable income for the purpose of determining maintenance. At the time of trial Evelyn was aware that the Cummings note was overdue, and the debtor company in bankruptcy, yet she did not raise with the trial court the issue of the unavailability of this asset. Further, between the close of the proofs and the announcement of the court’s decision, Stanley offered to either buy out Evelyn’s share of the note over six months at 8% interest, or pay Evelyn 8% on her share until the bankruptcy court released the funds. At the time Stanley made these offers, Evelyn rejected both proposals. In her post-trial motion, however, she suggested a similar settlement option. Under the circumstances outlined, we do not believe it was error for the trial court to include the Cummings note in calculating Evelyn’s investment income.

In addition to her investable income, Evelyn will also be in a position, once she completes her master’s degree, to earn wages. Evelyn testified that once she completes her coursework, if she finds employment, she will probably earn $18,000 to $19,000 a year.

We believe that the trial court fairly considered Evelyn’s income; however, we do not believe the court gave sufficient consideration to Evelyn’s testimony regarding her reasonable needs. Evelyn testified to specific amounts expended during the marriage in several categories Stanley did not mention, including medical, social, vacation, and home repair, as well as additional amounts for categories Stanley did testify to. Evelyn also stated in her testimony that she anticipated expenses which she is presently unable to afford, most notably some major household repairs. Evelyn also testified that she expected to incur increased clothing costs once she embarked on the pursuit of a career. Further, Evelyn testified that she had been included in Stanley’s medical insurance coverage, dental care had been provided free of charge by a friend of Stanley’s, and the family vacations had consisted of trips to Stanley’s vacation property in Michigan. Thus, some of Evelyn’s expenses during the marriage were met through sources she has not retained.

Both of the parties testified that their frugal standard of living had allowed them to save capital for the future. Inasmuch as the standard of living during the marriage is to be considered when the court makes an award of maintenance (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336), we believe, as Evelyn has argued, that investing in future security can be considered an element of the marital lifestyle. Finally, Evelyn testified that it would take her three years to complete coursework for a master’s degree at a cost of approximately $10,000 per year for three years.

Considering all of these factors, and the criteria outlined in section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)): the duration of the marriage, the age and physical and emotional condition of the parties, the standard of living established during the marriage, the ability of the spouse from whom maintenance is sought to meet his needs while meeting the needs of his spouse, the financial resources of the party seeking maintenance, and the ability of the spouse seeking maintenance to meet his own needs, we do not believe the trial court awarded Evelyn an adequate amount of maintenance. We believe that the maintenance award for Evelyn should be modified to $1,200 per month, or $14,400 per year.

We also believe that the three-year duration limitation the trial court placed on Evelyn’s award does not allow her time to become self-sufficient. As a general rule, limitations on maintenance awards serve the purpose of encouraging the recipient spouse to use diligence in procuring self-sufficiency. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447.) Evelyn testified that after she obtained a master’s degree, which would take her three years, if she found employment in the field, she could probably earn $18,000 to $19,000 per year. Due to her age and absence from the work force, we believe that even with diligence, Evelyn may not find immediate employment after she graduates. We therefore modify Evelyn’s maintenance award to last for a period of five years to give her time to become self-sufficient.

The trial court ordered Evelyn to pay one-half of her attorney fees. We do not dispute the court’s findings as to the reasonableness or necessity of the fees; however, we modify the order so that Stanley will be responsible for the full amount of Evelyn’s attorney fees. We do not believe that Evelyn has the financial ability to pay her half, $22,204, of the fees as ordered. Her investment income will be approximately $24,000 per year. She will receive another $14,400 per year in maintenance. Evelyn’s annual expenses are over $24,000 per year, and her tuition for three years will be approximately $10,000 per year. If Evelyn is required to pay attorney fees, she will have to deplete part of her principal. A spouse need not sell her assets in order to pay attorney fees. (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008.) Accordingly, we believe the trial court’s order should have required Stanley to pay all of Evelyn’s attorney fees.

Finally, we address Stanley’s argument that Evelyn has waived her right to prosecute this appeal because she has chosen to accept the benefits of the property settlement portion of the judgment. The general rule in Illinois is that a litigant cannot attack a decree after enjoying its benefits if, were the judgment reversed on appeal, the opposing party would be at a disadvantage. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608.) Stanley argues that because the financial elements of a judgment for dissolution are so intimately connected, any action on the maintenance issue would affect the property award. Stanley concludes that because he has substantially complied with the property judgment, any change in that award would greatly prejudice him. We note, however, that Evelyn’s assignment of error applies exclusively to the maintenance and attorney fees portion of the judgment. She does not dispute the property settlement award. Further, in awarding the property, the trial court relied on Stanley’s proposal for an equitable division of the marital property. Stanley has not cross-appealed the court’s judgment. As neither party is contending that Evelyn receive less than the amount of property awarded to her, we do not believe that Stanley can be disadvantaged by our decision to allow Evelyn to go forward with this appeal.

For the foregoing reasons, we modify Evelyn’s maintenance award to $1,200 a month for five years and order Stanley to pay the full amount of Evelyn’s attorney fees.

Reversed in part; affirmed in part as modified.

JOHNSON and LaPORTA, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES JOHNSTON, a Minor, by Elizabeth Johnston, his Mother and Next Friend, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY et al., Defendants (Marsco Manufacturing Company, Inc., Defendant-Appellee).
    First District (4th Division)
    No. 1—88—3717
    Opinion filed March 8, 1990.

      Neil Gershon, of Jules S. Gershon & Associates, of Chicago (Robert Handelsman, of counsel), for appellant.
    Shelmerdeane A. Miller, of Law Offices of Roderick J. Bergin, of Chicago, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Charles Johnston, brought suit for personal injuries against the defendant, Marsco Manufacturing Company, Inc., and Commonwealth Edison, alleging negligence. Marsco filed a motion for summary judgment, arguing that Marsco owed no duty to Johnston. The trial court granted Marsco’s motion, and Johnston appeals from the summary judgment order.

In June of 1985, Johnston, a minor, was severely burned when he climbed up a Commonwealth Edison utility pole and came into contact with the transformer. Marsco Manufacturing Company owns a building-adjacent to the pole. On the side of the building facing the utility pole there is a window covered with a window grate that has horizontal bars. The roof of the building is fenced. On the day of the injury, Johnston was playing ball in the vicinity of the building and utility pole. .A ball landed on the roof of the Marsco building, and Johnston set out to retrieve it. He climbed atop some refuse barrels underneath the window of the Marsco building. The uncontroverted testimony is that the barrels did not belong to Marsco, nor did Marsco place the barrels in that location. Johnston stepped from the barrels onto the ledge and grate of the window. Holding onto the grate, Johnston then stepped onto a small pole attached to the utility pole and moved his hands from the grate to the pegs on the utility pole. He proceeded to climb up the utility pole, but was unable to get from the pole to the roof of the building. He then climbed partway down the pole and thrust himself onto an adjacent platform. In an attempt to move to another utility pole, Johnston started to move across the platform. He grabbed onto the transformer and was severely burned by the electrical current.

At his deposition, the owner of the Marsco building testified that he knows children regularly play ball in the vicinity of his building. There is a “pitching box” drawn on the wall of another Marsco building nearby. The owner testified that he is aware of four occasions when a Marsco employee retrieved balls from the roof of Mars-co’s building for the children. The owner has never seen children climbing on the window grate or the utility pole. He is aware, however, of another young boy who was similarly injured in November of 1980 trying to retrieve a ball off of the Marsco building roof. This boy also used the window grate as a hand and foothold to climb over and onto the utility pole. The boy was shocked and burned by a transformer located near the top of the pole. Marsco’s owner testified that after the incident in 1980, he checked the Marsco roof to make sure the fence was still in place and functioning to repel balls from the rooftop. In a meeting with Commonwealth Edison on an unrelated matter, Marsco suggested to Commonwealth Edison that the utility pole be fenced to prevent further mishaps.

In his complaint against Marsco Manufacturing, Johnston alleged that Marsco was negligent in erecting the window grates and placing the refuse cans in a manner it should have known could cause injury to children. Marsco, contending it owed no duty to Johnston, filed a motion for summary judgment that the trial court granted. Johnston appeals from the summary judgment order.

At the core of Johnston’s argument is his interpretation of the case of La Salle National Bank v. City of Chicago (1985), 132 Ill. App. 3d 607, 478 N.E.2d 417, a case Johnston proposes is on “all fours” with his own. In LaSalle, the court, relying on Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, found the city liable for failing to repair a hole in a fence through which a child gained access to an adjacent railroad track, where he was injured. The city was aware that children were in the habit of passing through the hole in the fence onto the railroad track. The court found that while the city did not own the property upon which the dangerous instrumentality was located, the trier of fact could properly find that the city had “ ‘created’ ” or contributed to the hazardous condition. La Salle, 132 Ill. App. 3d at 613, 478 N.E.2d at 421.

Johnston concludes that if La Salle is applied to the present case, Marsco Manufacturing is liable in negligence because: (1) Johnston used the window grate to gain access to the utility pole and the transformer, the dangerous instrumentality on which he was injured; (2) Marsco knew that children played in the vicinity and that another boy had been similarly injured in November of 1980; and (3) Marsco failed to take the relatively simple and inexpensive steps, such as posting warning signs, boarding up the window grate, or using a grate with vertical bars, that would have precluded Johnston using the window for access. Johnston has generalized the factors of La Salle into a broad principle of law: a property owner is liable for injury to a child if he fails to take reasonable steps to preclude the child from using his property to gain access to a dangerous instrumentality elsewhere, and the owner knows that children are using his property in such a manner.

We do not believe that the La Salle National Bank v. City of Chicago case supports the broad interpretation Johnston infers. The LaSalle court specifically limited its holding to the narrowly drawn circumstances of the case: “Under the circumstances of the instant case, where: (1) city had a contractual duty to maintain the fence ***; (2) city allowed such fence to remain in a state of disrepair ***; and (3) city had notice that children were in fact using a hole in its fence to gain access to the railroad tracks and to play in close proximity to moving trains *** we believe that city could properly be found to have ‘created’ or contributed to a hazardous condition.” (La Salle, 132 Ill. App. 3d at 613, 478 N.E.2d at 421.) We are unwilling to generalize the holding of La Salle beyond the scope delineated by that court.

Johnston also cites to the case of Halloran v. Belt Ry. Co. (1960), 25 Ill. App. 2d 114, 166 N.E.2d 98. In Halloran, the court applied the reasoning of Kahn to find that the owner of sandpiles on which children habitually played was liable to a child injured on railway tracks that traversed the approach to the sandpiles. The court did not consider whether sandpiles in themselves are dangerous and acknowledged that the sandpile owner did not own or control the property on which the child was injured. Nevertheless, the court found that the sandpile owner was responsible for the creation of the attraction which lured the children into the dangerous environment of the railroad tracks. The court noted that the attractiveness of the premises or instrumentality was a controlling factor.

In the present case, Johnston has not alleged that Marsco, in placing the window grate as it did, created an attraction such as the alluring sandpiles of the Halloran case. Further, while Marsco knew that children played ball in the vicinity of its building, it had no knowledge of children habitually climbing onto the window grate or the utility pole. Marsco was aware of another instance in which a child was injured in a manner similar to that described in this case. We believe, however, that such an incident, isolated in nature, involving a common, nondangerous instrumentality, is distinguishable from the kind of habitual use noted in Halloran.

Johnston also points to the incident of November 1980 in arguing that Marsco’s liability is predicated upon foreseeability. For support, Johnston cites to Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177, wherein the supreme court cites Kahn as having established “foreseeability of harm to children as the cornerstone of liability.” (Corcoran, 73 Ill. 2d at 326, 383 N.E.2d at 180.) Because it has also stated that the proper basis of analysis in property owners’ liability to children cases is the customary rules of ordinary negligence (Kahn v. James Burton Co., 5 Ill. 2d at 624, 126 N.E.2d at 841), we do not believe that the supreme court’s statement in Corcoran is to be highlighted out of context. The supreme court has also stated, in a decision rendered after Kahn, that “whether the law imposes a duty does not depend upon foreseeability alone.” Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.

Further, we are not convinced that the incident of November 1980 made the injury to Johnston foreseeable in the sense that Marsco should have recognized the window grate as presenting an unreasonable risk of harm to children. We believe that inasmuch as the November 1980 occurrence was an isolated incident, involving a common, nondangerous instrumentality, the risk presented, although recognizable, was the kind of event so unlikely to occur that it would commonly be disregarded. See Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619, quoting W. Prosser, Torts §31, at 146 (4th ed. 1971).

Finally, we acknowledge Johnston’s argument that an instrumentality, in and of itself nondangerous, may become dangerous to children because of the surroundings or circumstances (Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 383 N.E.2d 177) or when joined with other nondangerous instrumentalities. (See Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 404 N.E.2d 918.) We believe, however, that this principle is limited to those situations in which the defendant controlled the instrumentalities, circumstances, or surroundings, which in combination became dangerous, or created or contributed to the allure of a condition, such as the sand-piles in Halloran that habitually attracted children. In the case at bar, Johnston has not alleged either that Marsco Manufacturing was in control of the instrumentalities or circumstances which combined to cause Johnston’s injury or that children were habitually attracted to climbing the window grate.

Because we do not believe the present case is “on all fours” with La Salle, and Johnston has not otherwise established that Marsco owed him a duty, the decision of the trial court is affirmed.

Affirmed.

McMORROW, P.J., and JOHNSON, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HARRIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—0116
    Opinion filed March 9, 1990.
    Rehearing denied April 5, 1990.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Marilyn F. Schlesinger, Special Assistant State’s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant Louis Harris was convicted of the armed robbery and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 18—2, 12—4(b)(1)) of Johnnie Wilson, a cab driver.

We affirm.

The incident giving rise to this appeal occurred on the night of March 28, 1986. After hailing a cab driven by Wilson, defendant asked to be taken to 45th Street and Saint Lawrence Avenue in Chicago. En route, Wilson stopped at a liquor store, at defendant’s request, so that defendant could obtain change for the fare. According to Wilson, the sole occurrence witness, as he approached the destination, defendant held a gun to the back of his head, instructed Wilson to park the cab, and proceeded to rob him. A struggle ensued and the gun fired. According to defendant, he had no gun and had merely asked Wilson to park and briefly wait while he spoke to another individual about a moving job before proceeding on to 44th Street and Cottage Grove Avenue. An argument ensued when Wilson told defendant he would not take him to that address because it was in a public housing project. The argument escalated into a physical fight during which Wilson produced a gun. As the struggle continued, the gun fired.

It is undisputed that two shots were fired from the gun. The first bullet grazed Wilson’s left leg. The second bullet struck Harris’ left forearm.

In corroboration of Wilson’s testimony, the State presented testimony of Chicago police officer Wayne Campbell, who responded to Wilson’s telephone call, Dr. Jean Claude Jacob, a physician at Provident Hospital who treated both Wilson and defendant, Terry White, an emergency room nurse at the hospital who also treated defendant, and Cook County Assistant State’s Attorney John Malevitis, who interviewed both Wilson and defendant at the hospital.

Defendant alone testified in his defense.

We detail further facts below in consideration of the contentions raised by defendant on appeal.

Opinion

I

Prior to commencement of defendant’s sentencing hearing, counsel for defendant filed, and the trial judge then considered, a motion prepared by defendant’s counsel for a new trial. The motion was denied. After denying that motion, the trial judge considered comments from the State and defendant’s counsel in aggravation and mitigation for sentencing purposes. The trial judge then asked defendant if he wanted to say anything. At that time, defendant indicated that, in addition to counsel’s motion, defendant desired to present a handwritten pro se motion for a new trial based on ineffective assistance of trial counsel. The trial judge permitted that motion to be filed as an addendum to defendant’s counsel’s motion. The trial judge promptly denied that motion and proceeded to impose sentence.

On appeal, defendant argues the failure of the trial judge to properly consider defendant’s pro se motion and to appoint other counsel to represent defendant in a post-trial hearing, on the ineffectiveness issue constituted error under People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045.

Krankel, however, has not been interpreted as establishing a per se rule that all pro se motions for a new trial by defendants alleging ineffective assistance of trial counsel mandate appointment of new counsel. (People v. Washington (1989), 184 Ill. App. 3d 703, 540 N.E.2d 1014.) Instead, it has been observed:

“[T]he trial court should examine the factual matters underlying the defendant’s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court should new counsel be appointed.” Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.

Although the record reflects that the trial judge did not give lengthy consideration to the content of defendant’s pro se motion, the above considerations provide guidance in determining whether the trial judge’s denial of the motion was nevertheless proper. Where defendant’s assertions do not indicate neglect of the type alluded to above, there would exist no basis to disturb the ruling on the motion below.

Defendant’s post-trial motion in the instant case consists of a two-page “Notice of Motion for a New Trial or Arrest of Judgment,” and an attached 10-page “Affidavit in Support of Motion for New Trial or Arrest of Judgment.” Pertinent to the allegation of ineffective - assistance of trial counsel, the affidavit focuses on the failure to subpoena witnesses on defendant’s behalf. Specifically, the affidavit states the attorney defendant retained, E. Duke McNeal, had passed the case on to an associate, Akim Gursel, defendant’s trial counsel. However, defendant was not made aware of McNeal’s “disassociation” with the case until the trial commenced. Further, on . the day prior to trial,- defendant stated, Gursel indicated he had not made contact with the defendant’s witnesses and was not sure if McNeal had spoken with them. Gursel had indicated he would attempt to contact those witnesses. The affidavit also states Gursel was not familiar with the case. Defendant stated he was led to believe that McNeal had given Gursel the necessary information to try the case but that it was evident Gursel was without subpoenas to call forth witnesses on defendant’s behalf.

When given opportunity to argue his motion orally, defendant reiterated his assertion regarding subpoenas not being issued to have family members and fellow workers called forth to testify.

Defendant’s assertions do not support a basis to determine that the trial judge’s denial of defendant’s motion without appointing new counsel was improper. The record discloses several discussions between defendant’s counsel and the trial judge regarding the subpoenas and whether counsel was going to present witnesses in addition to defendant. Defendant’s counsel stated that subpoenas were prepared, but he was informed that the subpoenas had not been served. However, counsel stated that he had been assured, during voir dire, by a woman interested in defendant’s case, that those witnesses would voluntarily appear in court to testify on defendant’s behalf. The record also discloses that, following defendant’s testimony, the trial judge adjourned court early to permit counsel additional time to produce the witnesses before resting. On the following day, counsel stated that he had been unsuccessful in personally attempting to contact the witnesses.

More importantly, however, defendant’s counsel’s offer of proof as to what the witnesses would testify to, if produced, removes any doubt that the issue with respect to the subpoenas could support an assertion of ineffective assistance of trial counsel. Defendant’s counsel stated one of the witnesses, a woman, would testify defendant was on his way to speak to her on the night of the incident about helping her move. The other witnesses would also testify defendant took the cab to 45th Street and Saint Lawrence Avenue to inquire about a moving job.

Thus, the witnesses were neither alibi nor occurrence witnesses, and their testimony, at best, would merely corroborate, and be cumulative to, defendant’s own account of why he had hired the cab. We find no reason to conclude that the allegations regarding the failure to subpoena those witnesses could provide the type of evidence of neglect for which an independent evaluation by new counsel would be warranted. We therefore conclude denial of defendant’s motion was proper.

II

Following selection of the jury and two alternates, the trial judge indicated for the record that defendant’s counsel had objected, during voir dire, to the State’s use of peremptory challenges to excuse black venirepersons because of their race. However, observing that the jury included three black individuals and noting that both alternate jurors were black, the trial judge found defendant had failed to establish a prima facie case of discrimination based on exclusion of blacks from the jury.

Defendant now contends the trial judge erred in that determination and that the case should be remanded for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

We decline to reach the merits of that argument because we conclude defendant has failed to properly preserve the issue for review.

In People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, the supreme court reaffirmed that, in this State, in non-capital cases, both a timely trial objection and a written post-trial motion raising the issue are required to preserve an issue for consideration on appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) The court observed that while the requirement of a trial objection is designed to permit opportunity to correct the error at trial (see People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 239), the requirement of a written post-trial motion is statutory. Enoch, 122 Ill. 2d at 186-87, 522 N.E.2d at 1130.

Although, in the case at bar, defendant’s counsel made timely objection to the State’s exercise of peremptory challenges, neither the post-trial motion filed by defendant’s counsel nor defendant’s pro se motion addresses the issue. We find that failure fatal to presentation of the issue on review.

Defendant argues that the timely objection was alone sufficient to preserve the issue for review, citing People v. Whaley (1989), 184 Ill. App. 3d 459, 540 N.E.2d 421, in which defendant’s contention on appeal pursuant to Batson was considered notwithstanding defendant’s failure to include that issue in his written post-trial motion. Concluding defendant had not waived the opportunity to raise the issue, the court in Whaley cited the supreme court’s “recognition in [People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360] that Batson requires only a ‘timely objection’ to the State’s use of peremptory challenges.” Whaley, 184 Ill. App. 3d at 465, 540 N.E.2d at 425.

Evans, However, cannot be read to stand for that proposition. Pertinent here regarding waiver of a contention pursuant to Batson, the supreme court, in Evans, determined defendant had waived any right to assert that Mary Patton, a black venireperson, had been improperly excused by the State. In its decision, the court did indeed state, “Batson requires that the defendant make a timely objection to the prosecutor’s peremptory challenge.” (Evans, 125 Ill. 2d at 61, 530 N.E.2d at 1364.) However, that statement cannot be read out of context as delineating some new minimum requirement, specifically applicable to a contention on appeal pursuant to Batson, which would preserve the issue for review in a departure from the waiver doctrine reaffirmed in Enoch. First, the supreme court noted the defense in Evans had failed to object either at trial or in post-trial motions to the exercise of the peremptory challenge of Mary Patton and, because the objection was being raised for the first time on appeal, the court considered the objection waived. (Evans, 125 Ill. 2d at 62, 530 N.E.2d at 1364.) At no place in the court’s analysis is it even remotely suggested that, had the defense timely objected to the use of a peremptory challenge to excuse Mary Patton at trial, that objection, alone, would be sufficient to preserve the issue for review. Moreover, in Batson, the Supreme Court’s only reference regarding timely trial objection occurs in the Court’s observation that its holding would not create serious administrative difficulties and that, in the case before it, the defendant’s objection had, in fact, been timely. (See Batson, 476 U.S. at 99-100, 90 L. Ed. 2d at 89-90, 106 S. Ct. at 1724-25.) The Court simply did not address itself to what might constitute waiver for purposes of appeal in application of its holding.

Therefore, we find no basis to conclude that the requirements as to waiver of issues on appeal set forth in Enoch should not be applied in the case at bar. And, because defendant failed to include objection to the State’s use of peremptory challenges in either post-trial motion, we conclude defendant has waived the issue.

Ill

Defendant received concurrent prison sentences for armed robbery and aggravated battery.

Defendant now contends the cause must be remanded for a new sentence because both aggravated battery counts were based on a single gunshot wound.

Contrary to defendant’s assertion, the record discloses that the jury found defendant guilty of, and the trial judge sentenced defendant for, only one count of aggravated battery. The trial judge instructed the jury to find defendant guilty of aggravated battery if the jury determined defendant used a deadly weapon or if defendant knew Wilson was a driver of public transportation. Only one verdict form was provided for that purpose. Accordingly, the jury foreman’s recitation of the verdict was limited to finding defendant “guilty of the offense of aggravated battery.” Finally, in sentencing defendant, the trial judge stated:

“The sentence *** will be fifteen years in the Department of Corrections as to the armed robbery, five years Department of Corrections as to the aggravated battery, concurrent both counts.” (Emphasis added.)

Remand is therefore unnecessary.

For the above reasons, we affirm the judgment of the circuit court.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY E. OAKS, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1182
    Opinion filed March 9, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Stephanie L. Ellbrogen, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and William Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a jury trial, defendant, Henry E. Oaks, was convicted of unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10—3) and sentenced to a two-year prison term to run consecutively with a 20-year term he previously received for an armed robbery conviction. On appeal, he contends that the trial court abused its discretion in making his two-year term a consecutive term. We affirm.

The State presented evidence that shortly after noon on August 16, 1985, Darryl Watkins went to see defendant, whom he had known for 17 years, at his apartment at 1152 North Harding in Chicago. Watkins entered defendant’s apartment through the back door, and after he did so, defendant locked both the back door burglar gates and the door itself. Watkins followed defendant into the bedroom, where defendant was going to make a telephone call, and saw him reach into the bedroom closet and pull out a loaded .357 Magnum gun. Watkins then walked into the living room and waited for defendant to complete his call. About a minute later, defendant entered the living room with the gun drawn and told Watkins he was not going anywhere because he was a “snitch,” having made a statement to some people about defendant’s doing something “weird.” Defendant then pulled out a pair of handcuffs and ordered Watkins to put his hands behind his back. When Watkins refused, defendant pointed the gun at the back of his head. Watkins then put his hands behind him, was handcuffed by defendant, and was ordered to walk to the bedroom closet.

When Watkins arrived at the bedroom closet, which was about two feet long by three feet wide, defendant told Watkins that he should really shoot him then. Instead, he tied Watkins’ legs with an extension cord, shoved a sock in his mouth, and wrapped another sock around his head to keep the first sock in place. Defendant then kicked Watkins into the closet and closed the door behind him, bracing the door with a chair.

While Watkins was in the closet, he heard defendant talking, saying someone’s name and asking whether Watkins had ever said anything about him to “them.” A short while later, he heard the telephone ring and defendant saying how he would like to kill Watkins and asking what “they” should do with the body. He heard defendant then asking someone to bring a hypodermic needle so that they could inject Watkins with poison. During this telephone call, Watkins managed to untie his ankles and was in the process of removing the sock from his mouth when, suddenly, defendant opened the door. Defendant cocked his gun and pointed it at Watkins and dared him to try to' escape. He then retied and gagged Watkins, warned him not to again try to escape, and closed the closet door, again bracing it with a chair. Watkins remained in the closet overnight.

Early the following day, the closet door again was opened, and Watkins saw someone whom he recognized, Ike Taylor, sitting on a chair and defendant and another person standing with guns in their belts. Taylor told Watkins he was in serious trouble. Taylor then asked defendant if Watkins had been to the washroom and, when defendant said that he had not, Taylor untied and ungagged Watkins and led him to the bathroom. After Watkins had used the bathroom, Taylor gave him a glass of water and ordered him back into the closet. After Watkins had returned to the closet, Taylor told Watkins that his best move would be to leave town. Taylor then told him to remain in the closet because they did not yet know what they were going to do with him. The closet door again was shut, and the chair again was placed against the door. Watkins remained in the closet for the next two days, leaving only on two occasions when defendant allowed him to use the bathroom.

At about 10:30 a.m. on August 19, Watkins heard defendant leave the apartment. He called out defendant’s name and, when there was no answer, kicked open the closet door. He left the apartment by crawling under the front door burglar gates, cutting his shoulder and ripping his shirt as he did so. He then walked over to a neighboring apartment and asked a lady to call the police.

When the police arrived, the spoke to Watkins about what had happened. They noticed that Watkins was disheveled, with his torn shirt, and appeared excited and scared. They also noticed that he was handcuffed and had cut marks and bruises where the handcuffs were and blood on the back of his shirt. After talking to Watkins, the police arrested defendant as he was attempting to leave his apartment through the back door. The police then entered the apartment seeking any other offenders and found a .357 Magnum gun in the kitchen and an extension cord and socks in the bedroom closet.

The defendant admitted a prior acquaintance with Watkins but denied that he attempted to unlawfully restrain him on the dates in question. The parties stipulated that defendant had a 1976 aggravated battery conviction and recent convictions for armed robbery and unlawful use of weapon by felon arising out of that robbery.

After a jury found defendant guilty of unlawful restraint, the trial court conducted a sentencing hearing. At the hearing, the State asked for an extended-term sentence based upon defendant’s prior convictions and asked that the sentence be made consecutive to a 20-year sentence he received for his armed robbery conviction. Defense counsel argued against the extended-term sentence and consecutive sentence on the basis that the robbery case and the unlawful restraint case were related in that Watkins was one of the main witnesses against defendant in the robbery case. After hearing these and other arguments and considering defendant’s background, the court refused the extended-term sentence and sentenced defendant to two years in prison. The court, however, made that sentence run consecutively, concluding that defendant was a danger to the public based on the evidence of the three-day confinement of Watkins in the closet, the handcuffing, binding and gagging of Watkins, and “various times you and/or Mr. Taylor questioned Mr. Watkins as to certain events that occurred regarding that robbery and whether or not he was cooperating either with the police or in some way acting to your detriment.” On the latter evidence, the court stated that it would not be in the interest of justice to permit abuse and threats against potential witnesses in a criminal prosecution.

Defendant contends that the consecutive term was improper because the facts in the present case do not indicate that it was required to protect the public. He argues that his conduct was the result of a unique set of circumstances, involving someone he had known for a long time, and would not be likely to recur. We find no merit to these arguments.

A trial court should not impose a consecutive sentence “unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—4(b).) The trial court has wide discretion in deciding whether to impose a consecutive sentence, and a reviewing court should not reverse that decision unless there has been an abuse of discretion. People v. Partee (1987), 157 Ill. App. 3d 231, 272, 511 N.E.2d 1165, 1192.

We find that the nature and circumstances of the unlawful restraint and defendant’s criminal background were sufficiently serious for the trial court to conclude that a consecutive term was necessary to protect the public from further criminal conduct by defendant. That defendant presents a risk to the public is evidenced by the manner in which he committed the crime in this case. Defendant pointed a loaded gun at Watkins, in one instance pointing it at the back of his head and in another instance cocking the gun, handcuffed him in such a manner as to cause him cut marks and bruises, bound his ankles with an extension cord, gagged him with a sock in the mouth and another sock around the head, and then locked him in a small, dark closet. Although the extension cord and socks were removed after the first day, defendant kept Watkins locked in this small, dark closet for three days. During this time, defendant made several threats to kill Watkins. Although the visible, physical harm to Watkins may not have been excessive, the fact that defendant kept him locked in a closet for three days, under a constant fear of death, makes this a serious crime and defendant a dangerous criminal.

The apparent reason for committing the unlawful restraint also bolsters the conclusion that defendant posed a public danger. The trial court concluded that he committed the crime to abuse and threaten a potential witness in a criminal prosecution against him. Considering first the evidence in this case, including the accusation that Watkins was a “snitch” for having told some people that defendant had done something “weird” and Taylor’s statements to Watkins that he was in serious trouble and should leave town, and then defense counsel’s statement at the sentencing hearing that the unlawful restraint was related to defendant’s armed robbery conviction because Watkins was one of the main witnesses against defendant in the robbery case, it was clearly proper for the court to arrive at this conclusion. That defendant committed the unlawful restraint for this purpose turns it into an even more substantial crime because it was as much a crime against our system of justice as it was against a single individual. The trial court recognized this factor at sentencing when it stated that it would not be in the interests of justice to permit a defendant to abuse and threaten a potential "witness against him.

Defendant’s criminal history further supports the trial court’s determination. It includes a 1976 conviction for aggravated battery and 1986 convictions for the armed robbery and unlawful use of a weapon by a felon during that robbery. Considering this criminal past and the particular nature and circumstances of the unlawful restraint, we find that the trial court was acting within its discretion in imposing the consecutive sentence.

In People v. Partee (1987), 157 Ill. App. 3d 231, 511 N.E.2d 165, defendant was sentenced to a consecutive term of 10 years in prison for aggravated battery committed while on bail for a 1983 armed robbery for which he received a 30-year sentence. There the reviewing court, after first noting its limited role in reviewing a trial court sentence, affirmed the sentence on the bases that defendant had a criminal history including two armed robberies in 1973 and the 1983 armed robbery and the aggravated battery victim’s injuries were rather severe, including lacerations to her face, throat and ear canal resulting in permanent disfigurement. Defendant, in the present case, has a similar criminal history. Although the present case does not include the same types of injuries as in Partee, the nature and circumstances of the offense can be deemed to reflect a similar propensity to lawless and violent behavior. Moreover, defendant not only committed another crime while being prosecuted for the armed robbery, but this crime was directed at one of the main witnesses to that robbery. This fact lends to this crime a more ominous dimension than the one committed in Partee because it was intended to impede the criminal justice system and not just harm one person. For this reason, as well as the other circumstances of the crime and defendant’s criminal background, a consecutive term was proper.

Defendant cites People v. Pace (1975), 34 Ill. App. 3d 440, 339 N.E.2d 785, and People v. Zadel (1979), 69 Ill. App. 3d 681, 387 N.E.2d 1092, two cases in which consecutive terms were reversed, to support his argument that the consecutive term was improper. We find these cases to be factually distinguishable. Pace involved a brutal, bat-wielding attack by a defendant, who had been drinking, against a family playing baseball in the park. Although defendant was convicted of both aggravated battery and attempted murder and sentenced to consecutive terms on each, there was no evidence that he had any prior convictions. Zadel, on the other hand, involved a situation where defendant pled guilty in 1970 to an armed robbery, and then, before sentencing, fled to Canada, where he developed a new life free of crime. Five years later he was extradited to New Jersey, where he was tried, convicted and sentenced on a murder he had committed prior to the robbery. He became a model prisoner during his incarceration and, while still serving his sentence, was extradited to Illinois and sentenced to a term in prison on the robbery with the term to run consecutive to the term he received on the New Jersey murder. Although there was evidence of the prior offense of murder, the intervening passage of time, both in Canada and in the New Jersey prison, established that he was sufficiently rehabilitated since the commission of the robbery approximately nine years earlier. The present case shows no such manifest rehabilitation as in Zadel or crime-free past as in Pace to justify a reversal. Defendant, by his prior offenses, has shown a past disregard for our criminal laws, and, by his acts in the commission of the unlawful restraint, has demonstrated a present disregard for our criminal laws and process. Under such circumstances, the trial court’s imposition of the consecutive sentence was not an abuse of discretion.

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

Affirmed.

LORENZ and MURRAY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM WASHINGTON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2950
    Opinion filed March 9, 1990.
    Rehearing denied April 12, 1990.

      Michael J. Pelletier and Martin S. Carlson, both of State Appellate Defender’s Office, of Chicago (James B. Haddad and Richard G. Agin, of counsel), for appellant.
    Cecil A. Partee, State's Attorney, of Chicago (Inge Fryklund, Theodore F. Burtzos, and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a bench trial, defendant, William Washington, was convicted of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19—1) and sentenced as a Class X offender, pursuant to section 5 — 5—3(c)(8) of the sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8)), to 14 years in prison. On appeal, defendant contends: (1) he was denied his right to counsel of choice when the trial court summarily denied his trial day request for a continuance to allow his privately retained counsel to appear; (2) he was improperly sentenced as a Class X offender where the State failed to establish at sentencing the sequence of prior convictions as required by section 5 — 5—3(c)(8); (3) the double jeopardy clause prohibits his retrial or re-sentencing as a Class X offender; (4) his jury waiver was invalid because he had not been apprised that even though he was being charged with burglary, a Class 2 felony, he would be sentenced as a Class X offender; (5) he received insufficient notice that he would be sentenced as a Class X offender; and (6) he was improperly sentenced to an excessive prison term of 14 years. We reverse and remand this matter for a new trial.

Defendant was arrested for burglary on November 24, 1986. On December 31, he was arraigned on a charge of burglary, a public defender was appointed to represent him and the case was assigned to a trial court. Thereafter, from time to time, the trial court continued the case either on its own motion or by the parties’ agreement. On March 25, 1987, the court again continued the case by agreement to April 2 and, for the first time, set the case “with subpoenas.” Defendant remained in custody throughout this period.

On April 2, when the case was called for trial, the following discussion took place:

“THE CLERK: William Washington.
MR. ROZENSTRAUCH [the Public Defender]: Present before your Honor is Mr. William Washington. The matter was set for trial today. Mr. Washington informs me he, his family has retained an attorney for him who asked that the case be set for April 9th. I am ready to proceed.
MR. LEVY: State’s ready to proceed today, too, Judge.
THE COURT: Motion for continuance denied.
MR. ROZENSTRAUCH: We are ready.
THE COURT: No one has filed an appearance. This is just some statement that somebody wants something continued. The family — .
MR. ROZENSTRAUCH: They have given me the name of the attorney.
THE COURT: Well, that is all very well. He is competently represented at this time. Motion for continuance denied. State ready?
MR. LEVY: We are ready to proceed today, Judge.
THE COURT: Pass it for trial.”

When the case again was called for trial, the public defender informed the court that his client wished a bench trial. The trial court advised defendant of his right to a jury trial and explained that right to him. Defendant said that he understood the right and signed a written jury waiver. The matter then proceeded to trial.

The only evidence presented at trial was the testimony of Officer Carl Riggenbach, the arresting police officer, and the stipulated testimony of Fayik Hassan, the owner of the burglarized premises. The evidence showed that at about 1:55 a.m. on November 24, 1986, Officer Riggenbach received a call indicating that a burglary was in progress at a building at 5702 South Ashland in Chicago. When Riggenbach arrived, he looked into the building and saw defendant standing in a hallway by a hole in the wall leading to the Ashland Sandwich Shop. When Riggenbach approached the door leading to the hallway, defendant saw him and fled. Riggenbach chased defendant for about 100 feet and finally caught defendant when he stumbled and nearly fell to the ground outside the building. At the time, Riggenbach noticed that defendant was covered with plaster dust. Riggenbach searched defendant but found nothing on him. After arresting defendant, Riggenbach returned to the hole in the wall and noticed plaster dust in that area. He then climbed through the hole into the sandwich shop, getting plaster dust on his clothes while doing so, and saw a tire iron on the floor and three video games which had been pried open. The evidence further showed that Fayik Hassan was the owner of the 5702 South Ashland building and did not give anyone permission to enter the building during the early morning hours of November 24, 1986. At the conclusion of the trial, the court found defendant guilty of burglary.

About a month after the trial, the trial court heard post-trial motions filed by defendant’s public defender and by defendant himself. The court denied the motion filed by the public defender but continued the motion filed by defendant because the motion alleged incompetent representation and he wanted to give defendant time to secure representation from the conflicts unit of the public defender’s office. When defendant informed the court that he would be represented by a private attorney, the following discussion took place:

“THE COURT: Now you can afford an attorney?
MR. WASHINGTON: Yes, I had got one then, you know, it was set for trial, but my sister had got the attorney. I have his card, but he was out of town at the time, but supposedly he called here in court. I think she will be on record or something, I don’t know.
THE COURT: Well look, I don’t grant continuances on cases that are set for trial based on what some secretary of an attorney who has not filed an appearance, what they have to say.”

Thereafter, the private attorney appeared, and he too filed a post-trial motion, alleging, among other things, that defendant had been denied his right to counsel of choice. The court conducted a hearing on this motion, hearing testimony from a number of witnesses, including Linda Washington, defendant’s sister. Ms. Washington testified that she had hired a private attorney by the name of Larry Dohman to represent defendant and had paid him $500 of the $700 he required for the representation. She said that she believed that her mother had the receipt for the $500 payment. She also stated that she was in court on April 2, 1987, and, when she heard that the case was going to trial, she contacted Dohman’s secretary and asked her to call the trial court regarding the attorney’s unavailability. The secretary told her that she had done so. After hearing the testimony, the court denied the motion, noting that it considered the statements about getting a private attorney to be dilatory.

At the sentencing hearing, conducted five days after the hearing on the post-trial motion, the court heard matters in aggravation and mitigation. The State first informed the court that defendant had two prior felony convictions, evidenced by a presentence investigation report showing the dates of arrest and conviction. The State then advised the court that these two prior convictions qualified defendant for mandatory Class X sentencing. Defendant’s private attorney did not express any surprise regarding the prior convictions or request for mandatory Class X sentencing but, instead, argued several matters in mitigation. After arguments by counsel, the court gave defendant an opportunity to make a statement. After defendant’s statement, the court then stated it was necessary to sentence defendant to a relatively long period in prison as a deterrent to others and sentenced defendant to 14 years.

Opinion

I

Defendant’s first issue is that he was denied his constitutional right to counsel of choice when the trial court summarily denied his trial day request for a one-week continuance to allow time for his retained private counsel to appear. He argues that the denial of this request constitutes reversible error. The State contends that the denial of the request was proper because the request was made on the day of trial, defendant’s appointed counsel of several months was prepared to go to trial and defendant had not expressed any dissatisfaction with appointed counsel. The State further contends that even if the denial of the request were improper, a reversal is not warranted because defendant was not prejudiced by the denial. We find that defendant was denied his constitutional right to counsel of choice.

A trial court’s determination of whether to grant a defendant’s trial day request for a continuance to allow time to obtain counsel requires a balancing of the interest in trying a case with due diligence with defendant’s constitutional right to counsel of choice. (See People v. Friedman (1980), 79 Ill. 2d 341, 347-48, 403 N.E.2d 229, 233; People v. Lewis (1988), 165 Ill. App. 3d 97, 102, 518 N.E.2d 741, 744.) This balancing, of necessity, requires a review of the diligence shown by the defendant (Friedman, 79 Ill. 2d at 347, 403 N.E.2d at 233) and an inquiry into the actual request to see if the request is being used merely as a delaying tactic. (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116, 117.) The trial court has discretion in its decision on a continuance motion, and a reviewing court will not reverse a trial court’s decision unless it is clear that there has been an abuse of discretion. (People v. Ritchie (1966), 66 Ill. App. 2d 417, 422, 213 N.E.2d 306, 308.) A determination of whether there has been such an abuse depends on a consideration of all the facts of a particular case. (Lewis, 165 Ill. App. 3d at 102, 518 N.E.2d at 744.) Having considered all of the facts of this case, we find that the trial court did abuse its discretion in denying defendant’s motion for a continuance.

There is no indication in the record of any prior attempt by defendant to delay the proceedings. The record shows that he was present or was represented at all court calls and never delayed any of the court proceedings. The record does disclose five continuances granted in this case from the time of defendant’s arraignment to trial, but four of the continuances were by agreement and one was on the court’s own motion. When defendant requested a continuance for the first time on the date of trial, he asked for only a seven-day delay to allow for the appearance of his privately retained attorney. After the court denied this motion, defendant waived a jury trial and proceeded directly to trial. The trial itself lasted a very short time, and defendant did nothing to unnecessarily prolong it.

Additionally, there is no indication in the record that defendant’s request for a relatively brief continuance of seven days was being used merely as a delaying tactic. Any suspicion of such would be tenuous in light of the relatively short date requested and the evidence that the court did receive a call from the secretary of the private attorney whom defendant claimed to have retained. Moreover, the trial court failed to conduct any inquiry into the stated reason for the request for the continuance when it summarily denied the request. The court simply denied the motion and then, almost as an afterthought, said that nobody had filed an appearance and defendant was competently represented by the public defender. Later, when discussing its denial of defendant’s post-trial motion, the court indicated it denied the continuance motion because it considered it to be dilatory.

If the trial court suspected that defendant’s representation that a private attorney had been hired was being used as a delaying tactic, it very easily could have confirmed or dispelled its suspicion by inquiring further into the employment of the attorney. (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116, 117.) It failed to do this, even after defendant’s public defender advised the court that he had the name of the private attorney. Had it conducted the inquiry, it would have learned, as it did at the post-trial motion hearing, that defendant’s family had retained a private attorney who could not appear in court on the date set for trial.

We believe that People v. Green (1969), 42 Ill. 2d 555, 248 N.E.2d 116, People v. Willis (1972), 6 Ill. App. 3d 980, 286 N.E.2d 72, and People v. Ritchie (1966), 66 Ill. App. 2d 417, 213 N.E.2d 306, are instructive on this issue. In People v. Green, the Illinois Supreme Court reversed a trial court’s denial of a trial day motion for a brief continuance where defendant advised the court that a church had paid a private attorney, who had not yet filed his appearance, to represent him but he was in Washington on another case. The court found that defendant’s constitutional right was violated, when the trial court, without inquiry into the truth of defendant’s assertions, summarily denied his request, appointed a public defender and ordered the case to trial that day. In People v. Willis, the reviewing court reversed a trial court’s denial of a trial day motion for continuance on facts showing that defendant had been continually incarcerated, had informed the trial court of efforts to obtain privately retained counsel, had manifested dissatisfaction with appointed counsel’s services and yet-had cooperated with him. In People v. Ritchie, the reviewing court reversed a trial court’s denial of a trial day motion for continuance on facts showing that defendant had been continuously in custody for four months, had been represented by public defender for over two months, had informed the court that his relatives desired to obtain private counsel for him, had waived jury trial and had gone to trial essentially unrepresented.

We find the facts in the present case to be similar in many key respects to those in Green, Willis and Ritchie. As in Green, defendant claimed that someone else (his family) had hired a private attorney to represent him, the private attorney had not filed an appearance, defendant requested only a short delay in the court proceeding to allow this attorney to appear and the court failed to conduct any inquiry to verify the employment of the private attorney. As in Willis, defendant had been continually incarcerated, had informed the trial court that his family had retained a private attorney and even had the name of that attorney, and had been represented by appointed counsel for a time prior to trial. And, as in Ritchie, in addition to the similar facts in Willis, defendant waived jury trial and proceeded to trial. Additionally, as we already noted, there is no evidence in the record that defendant did anything to delay the court proceeding prior to or even after his trial day request for a short continuance. On these facts and the authority of Green, Willis, and Ritchie, we must reverse the trial court’s decision.

The State maintains that we should affirm the trial court on the basis of People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, and People v. Johnson (1978), 66 Ill. App. 3d 84, 383 N.E.2d 648, which both held that a trial court’s denial of a trial day continuance motion to substitute counsel was proper. Yet, both Friedman and Johnson are readily distinguishable from the present case. Friedman involved a situation where defendant was not in custody, had initially been represented by private counsel who withdrew and was replaced by appointed counsel, had been advised at the time of the appointment of counsel that he could substitute retained counsel on condition that he be ready for trial, which should be expected approximately three months later, had expressed dissatisfaction with appointed counsel in a letter to the trial court a good two months before trial, and appeared in court with only a letter from a recently contacted attorney who said that he could not be present for trial but would only assume representation if he could prepare for trial. Johnson involved a situation where defendant initially was represented by appointed counsel at arraignment but then advised the court he had private counsel, the private counsel obtained two previous continuances, one on the day of trial, and immediately prior to commencement of trial he first asked the court for appointment of new counsel. We think it clear enough from a recitation of these facts that neither of these cases could serve as a guide to our decision in the present case.

The State also argues that even if the denial of the continuance motion were improper, this case should not be reversed because defendant suffered no prejudice from representation by the public defender. The State cites People v. Sullivan (1977), 52 Ill. App. 3d 666, 367 N.E.2d 1042, People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684, and People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432, as support for this argument. People v. Sullivan is distinguishable on the basis that it did not even involve the question of whether defendant had been denied his right to counsel of choice by denial of his continuance motion. The Sullivan case involved the question of whether the defendant was required to proceed to trial with unprepared counsel. In responding to this question, the court said it would be proper to “consider the denial of a continuance from the hindsight of the record to determine if the defendant was substantially prejudiced by being required to proceed.” (Sullivan, 52 Ill. App. 3d at 670, 367 N.E.2d at 1045.) Interestingly, the choice of counsel question had arisen earlier in the trial court proceeding, and the court granted a continuance to allow time for private attorney to appear. Commenting on that decision, the reviewing court noted: “the importance of enabling the defendant to exercise his right to be represented by counsel of his own choosing is generally deemed to outweigh the inconvenience to the prosecution, witnesses, court and jury *** unless it is shown that the defendant’s actions were taken for the purpose of delay.” Sullivan, 52 Ill. App. 3d at 669, 367 N.E.2d at 1044.

People v. Mims and People v. Cole are distinguishable on the basis that in both cases the amount of delay which would result from a continuance was uncertain because defendant had not yet retained new counsel. In Mims, the defendant merely requested a continuance for an opportunity to hire a private attorney because he felt he would be able to do much better with his own attorney if his family could raise the money for one. In Cole, the defendant requested a continuance to allow him time to obtain counsel who would not be forced to present inconsistent defenses for three codefendants. Under these circumstances, the Mims and Cole courts denied the motion for continuance, noting that defendant had failed to show any prejudice in the denial of the motion. (Mims, 111 Ill. App. 3d at 818-19, 444 N.E.2d at 687; Cole, 47 Ill. App. 3d at 779, 362 N.E.2d at 435.) The present case differs from these cases in that defendant informed the court that his family had hired private counsel to represent him and he was seeking a relatively short continuance of seven days to allow that counsel to appear. Thus, neither Mims nor Cole applies.

For these reasons, we order a new trial.

II

Even if we had not ordered a new trial, we would have been compelled to order a new sentencing proceeding on defendant’s second issue because the State failed to establish the sequence of prior convictions necessary to sentence defendant as a Class X offender. Contrary to the State’s contention, this issue was not waived because sufficiency of evidence issues are not waived by a failure to raise them at trial. People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1131-32; People v. Lighthall (1988), 175 Ill. App. 3d 700, 705, 530 N.E.2d 81, 84.

Section 5 — 5—3(c)(8) of the Unified Code of Corrections provides:

“(c)(8) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. 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. 1985, ch. 38, par. 1005—5—3(c)(8).)

Thus, before a defendant may be sentenced as a Class X offender, it must be established that his first prior felony was committed after the effective date of the Act, the second after conviction on the first and the third after conviction on the second. A failure to establish that sequence requires vacating the sentence and remanding for re-sentencing. People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130.

It is clear that the State failed to demonstrate the necessary sequence of prior convictions in this case. The only evidence the State produced on defendant’s prior convictions was the presentence investigation report, which showed the dates of arrest and conviction for the prior offenses but did not show the dates of their commission. Contrary to the State’s contention, the dates of commission cannot be inferred from the dates of arrest and conviction. Since the State failed to present evidence on the dates of commission, it failed to meet the statutory requirements for sentencing defendant as a Class X offender. The failure to do so would warrant a new sentencing proceeding.

Ill

Defendant’s third issue is that the double jeopardy clause prohibits his retrial or resentencing as a Class X offender. He argues that the clause prohibits his retrial as a Class X offender because the State neither alleged nor proved at trial his prior convictions and that such was required to obtain enhanced sentencing. He argues that the clause prohibits his resentencing as a Class X offender because the State failed to prove the proper sequence of his prior convictions as required by section 5 — 5—3(c)(8) of the Unified Code of Corrections. We find no merit to either of these arguments.

Under the posture of the law as of the date of trial in the present case, the double jeopardy clause would not prohibit defendant’s retrial as a Class X offender because the State was not obliged to plead or prove his prior convictions to obtain a sentence enhancement. The law that applied was that if a fact merely enhanced the penalty for an offense without changing the elements of the offense, it was unnecessary to plead or prove that fact at trial. (People v. Mays (1980), 80 Ill. App. 3d 340, 344, 399 N.E.2d 718, 721.) To obtain a burglary conviction, the State needed to prove defendant guilty of a knowing entry into a building, without authority and with the intent to commit a felony or theft. (Ill. Rev. Stat. 1985, ch. 38, par. 19—1(a).) To obtain enhanced sentencing for that burglary conviction as a Class X offender pursuant to section 5—5—3(c)(8) of the Unified Code of Corrections, the State needed to prove defendant’s prior convictions. The prior convictions were therefore not elements of the substantive offense of burglary but merely matters to be considered for sentence enhancement. Accordingly, there was no requirement that they be pleaded or proven at trial. See People v. Palmer (1984), 104 Ill. 2d 340, 348, 472 N.E.2d 795, 799-800.

The double jeopardy clause also would not apply to resentencing because defendant was not placed in jeopardy at the first sentencing proceeding. The bar of double jeopardy precludes a second prosecution for the same crime after an acquittal or a conviction or multiple punishments for the same crime. (People v. Young (1983), 116 Ill. App. 3d 984, 989, 452 N.E.2d 718, 721.) Double jeopardy interests only are implicated in a sentencing proceeding if a defendant has been placed in jeopardy at that proceeding. (People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 477, 521 N.E.2d 864, 867.) That determination involves a consideration of whether the proceeding “was itself a trial on the issue of punishment.” Bullington v. Missouri (1981), 451 U.S. 430, 438, 68 L. Ed. 2d 270, 279, 101 S. Ct. 1852, 1858.

The sentencing proceeding in this case did not amount to a trial on the issue of punishment. It consisted merely of a presentation of the presentence investigation report, arguments by the State and defense counsel and a statement by the defendant. No witnesses were called to testify and there was no formal introduction of evidence. After the arguments and statement, the trial court sentenced defendant. This proceeding clearly lacked the hallmarks of a trial on the punishment (Bullington, 451 U.S. at 439, 68 L. Ed. 2d at 279, 101 S. Ct. at 1858), and the double jeopardy clause does not apply.

A case which is instructive on this issue is People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 521 N.E.2d 864. In that case, our supreme court rejected defendant’s contention that the double jeopardy clause barred a remand for a death penalty hearing under circumstances where the trial court had conducted a sentencing proceeding similar to the one conducted in the present case and then sentenced him to 40 years in prison. The court’s rejection of defendant’s contention was based on its conclusion that defendant had not been placed in jeopardy by the sentencing proceeding. (Strayhorn, 121 Ill. 2d at 478, 521 N.E.2d at 867.) Similarly, in the present case, defendant was not placed in jeopardy by the sentencing proceeding. Since he was not placed in jeopardy, he may be resentenced as a Class X offender.

We need not reach the remaining issues raised by the defendant since they are unnecessary for our decision and, unlike the double jeopardy issue, do not predetermine the scope of any retrial.

For the reasons stated in parts I and II of this opinion, we reverse and remand this case for a new trial.

Reversed and remanded.

COCCIA, P.J., and LORENZ, J., concur.

       Justice Pincham heard the oral argument in this case, and following his resignation, Justice Gordon was substituted and he listened to the tapes of oral argument and read the briefs and record.

       Our State legislature has amended section .111—3 of the Code of Criminal Procedure of 1963 (Pub. Act 86—964, eff. July 1, 1990 (amending Ill. Rev. Stat. 1985, ch. 38, par. 111—3)) to require the State to plead that it intends to seek enhanced sentencing and the prior convictions it will rely upon so as to give notice to defendant. It prohibits, however, disclosing these matters to a jury at trial. This legislation takes effect on July 1, 1990.


author: JUSTICE MURRAY

text:
    TRAVENOL LABORATORIES, INC., Plaintiff-Appellee, v. J. THOMAS JOHNSON, Director, Illinois Department of Revenue, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—89—0688
    Opinion filed March 9, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Thomas H. Donohoe, of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendants, J. Thomas Johnson, Director of the Illinois Department of Revenue (Department), and James H. Donnewald, Treasurer of the State of Illinois, appeal from an order of the Circuit Court of Cook County granting summary judgment to plaintiff, Travenol Laboratories, Inc. (Travenol). This is the second time this case is before the court. In a Supreme Court Rule 23 order (107 Ill. 2d R. 23) issued June 24, 1988, we dismissed defendants’ first appeal, finding that the order appealed from was not a final order (Travenol Laboratories, Inc. v. Johnson, 170 Ill. App. 3d 1160). In the instant appeal, defendants argue that the trial court erred in determining that a regulation promulgated by the Department, taxing the sale of medical appliances sold to health care professionals, was invalid and that the award of attorney fees and costs to Travenol was not reasonable. For the reasons set forth below, we affirm.

Briefly, the undisputed facts are as follows. Plaintiff Travenol is a manufacturer of health care products, including a CF Capillary Flow Dialyzer (Dialyzer), which is a component of a kidney hemodialysis machine. In January 1986, plaintiff sold Dialyzers to a health care professional, which uses the device in providing medical care to its patients. The health care professional does not resell or transfer the Dialyzer to its patients. The gross receipts from these sales totaled $46,434.

Pursuant to a regulation promulgated by the defendant Department of Revenue, the Department determined that Travenol’s sales of Dialyzers to the health care professional did not qualify for a “medical appliance exemption” under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1985, ch. 120, par. 441). Accordingly, the Department assessed a retailers’ occupation tax of $2,273 against Travenol.

Travenol paid the tax under protest and filed a complaint requesting that defendants be enjoined from transferring the funds paid under protest, that the regulation be declared void, and that it be awarded attorney fees pursuant to section' 14.1(b) of the Administrative Procedure. Act (Ill. Rev. Stat. 1987, ch. 127, par. 1014.1(b)). Both parties subsequently filed motions for summary judgment. On November 23, 1987, the trial court denied defendants’ motion and granted summary judgment to Travenol, declared the regulation in question to be invalid and unauthorized by statute, and ordered the return of the monies paid by Travenol under protest. The court also granted Travenol leave to file its petition for attorney fees, as provided by statute. (Ill. Rev. Stat. 1985, ch. 127, par. 1014.1(b).) Thereafter, defendants appealed to this court, and we dismissed the appeal, finding that the order appealed from was not final because the trial court had not disposed of Travenol’s petition for attorney fees. On remand, the trial court awarded Travenol $22,351 in attorney fees and costs, and this second appeal followed.

Section 2 of the Retailers’ Occupation Tax Act (ROTA) (Ill. Rev. Stat. 1985, ch. 120, par. 441), which imposes a 5% tax upon tangible personal property sold at retail, contains the following exemption provision:

“However, with respect to food for human consumption which is to be consumed on the premises where it is sold (other than alcoholic beverages, soft drinks and food which has been prepared for immediate consumption) and prescription and nonprescription medicines, drugs, medical appliances and insulin, urine testing materials, syringes, and needles used by diabetics, for human use, such tax shall be imposed at the rate of 0%.” (Emphasis added.)

Section 12 of the Act authorizes the Department of Revenue to promulgate and enforce rules and regulations relating to the administration and enforcement of the ROTA. (Ill. Rev. Stat. 1985, ch. 120, par. 451.) Pursuant to its authority under the ROTA, the Department promulgated the following regulations in section 130.310(c):

“(2) A medical appliance is an item which is intended by the maker to correct any functioning part of the body or which is used as a substitute for functioning part of the body, such as artificial limbs, crutches, wheelchairs, *** and bandaids. ***
(3) Medical appliances used by health care professionals in providing medical services do not qualify for the reduced rate of tax.” (Emphasis added.) (86 Ill. Adm. Code §130.310(c)(2), (c)(3) (1985).)

The Department subsequently amended regulation (c), and it now provides:

“Medical appliances used by health care professionals and not transferred to their patients in providing medical services do not qualify for the reduced rate of tax.” 86 Ill. Adm. Code §130.310(c)(3) (Supp. 1988).

Defendants concede that Travenol’s product is a medical appliance. The main issue before us is thus whether the Department’s regulation is valid. Defendants argue it is valid because, like the pertinent ROTA provision, it merely limits the tax exemption to medical appliances used “for human use.” Defendants further contend that the appliance is not sold for use by humans but rather that it is sold for a business use, i.e., use by health care professionals.

On the other hand, Travenol argues that the ROTA exemption provision does not distinguish between business and nonbusiness use; the provision only limits exemption on the sale of medical appliances “for human use.” Accordingly, Travenol asserts that the Department’s regulation is nothing less than an improper rewriting of the ROTA exemption provision to include an additional qualification limiting application of the tax exemption where the product is sold to health care professionals.

It is well settled that construction of a statute is a question of law. (Oberman v. Byrne (1983), 112 Ill. App. 3d 155.) The primary rule of statutory construction is to ascertain and effectuate legislative intent by looking first to the statutory language itself. If the language is clear, a court must give it effect and should not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266.) We further observe that statutes are to be strictly construed in favor of a taxing body and against exemptions. (Board of Education of School District No. 150 v. City of Peoria (1979), 76 Ill. 2d 469.) Where a statute is ambiguous, courts should give substantial weight and deference to a reasonable construction of the statute by the agency charged with its enforcement (People ex rel. Watson v. House of Vision (1974), 59 Ill. 2d 508); interpretations of statutes by an administrative agency are sources of legislative intent, although they are not binding on the courts (Geary v. Dominick’s Finer Foods, Inc. (1989), 129 Ill. 2d 389).

In the present case, we find that the ROTA provision at issue is clear and unambiguous and we need not, as defendants argue, resort to extrinsic aids to determine the legislature’s intent. The legislature plainly provided that “medical appliances *** for human use” shall be taxed at the rate of 0%. Travenol’s product is used for human ailments. Contrary to defendants’ argument, the fact that the product is sold to health care professionals, instead of directly to humans, simply does not change either the nature of the product ( a medical appliance), or its use (for human use). Accordingly, the product specifically is a product exempted from taxation under the pertinent ROTA provision.

Were we to hold as defendants urge, we would be impermissibly rewriting into the subject statute words/provisions, as did the Department pursuant to its regulation, that are not within the plain intention of the legislature. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1987), 163 Ill. App. 3d 253, aff’d (1989), 126 Ill. 2d 326.) The statute at issue provides that medical appliances “for human use” are exempt from the usual 5% tax; it does not provide that medical appliances “used by health care professionals” do not qualify for the reduced rate of tax. Clearly, had the legislature intended to so provide, it could have but did not do so as it did relative to food sold for human consumption which is exempted, unless it is to be consumed off the premises where it is sold. (Ill. Rev. Stat. 1987, ch. 120, par. 441.) The legislature simply did not limit the exemption with respect to medical appliances by language distinguishing between medical appliances sold for business or nonbusiness uses or direct or indirect use by humans. In further support of our determination, we also observe that the Department apparently recognizes the intent of the legislature as indicated by its own regulation which provides that a “[mjedical appliance is an item which is intended by the maker to correct any functioning part of the body which is used as a substitute for any functional part of the body,” which we interpret as focusing on the ultimate beneficiary of the product.

In light of the foregoing, we hold that the trial court properly ruled that the Department’s regulation was invalid.

Defendants’ final “argument” is that the trial court’s award of attorney fees and costs in the amount of $22,351 to Travenol “was not reasonable.” In actuality, defendants only challenge the propriety of the award of $428 for expenses in using Westlaw, a computerized legal research service, and $375 for copying documents.

The allowance of attorney fees rests within the trial court’s discretion, and a reviewing court will not disturb that court’s determination absent a clear showing of abuse of discretion. (Head v. Head (1988), 168 Ill. App. 3d 697.) Defendants have not made a clear showing that the trial court abused its discretion, and we see no reason to disturb its decision.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    RICHARD L. ERLICH, Plaintiff-Appellant, v. MELYNDA LOPIN-ERLICH et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1500
    Opinion filed March 9, 1990.

      Braun & Rivkin, Ltd., of Chicago (Lee M. Weisz, of counsel), for appellant.
    Joseph & Myers, of Chicago (Jack Joseph and Michael P. Myers, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Richard L. Erlich, the husband in a marriage dissolution proceeding, sued defendants Melynda Lopin-Erlich, his wife, and her attorneys, the defendant law firm Barsy, Joseph & Lichtenstein, and its individual attorneys, Herbert Barsy, Burton Joseph, Edward S. Lichtenstein, and Karen Plant, alleging abuse of process when they sought and received an ex parte temporary restraining order (TRO) blocking plaintiff from disposing of marital assets. The trial court dismissed the action pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) for failure to state a cause of action. Plaintiff appeals.

The complaint alleges that on February 22, 1989, defendants sought the TRO to restrain plaintiff from concealing or disposing of numerous marital assets. The wife’s affidavit stated that her husband, “upon learning of the filing of this action has immediately attempted to redeem a certificate of deposit at the South Chicago Savings Bank, which evidences his intentions to further deprive the petitioner of her interest.” At the ex parte hearing, defendants made certain representations to the court:

“This morning, your Honor, my office received a call from a Mr. Mike M-a-t-t-e-r-n, of South Chicago Savings Bank, which is an officer of the one of the banks listed had as additional respondent [sic]. Mr. Mattern informed us Mr. Erlich was at the bank at that moment attempting to withdraw various certificates of deposit. Based on that information as well as calls from Mrs. Erlich, our client, we believe as we allege in our Petition for a Temporary Restraining Order, unless such an order is granted today, that Mr. Erlich will continue for the rest of the day and may, for all we know, be continuing for the rest of the day in his quest to transfer various assets that are the subject of the Petition for the Dissolution.”

The complaint alleged further that those representations were false in that the bank in question was not open on that day, and that Mr. Mattern was not and had never been an officer of that bank. The complaint alleged that the TRO was sought “not for the purpose of preserving marital property, but, rather, for the ulterior purpose of wreaking havoc with the plaintiff’s ordinary business affairs and damaging the plaintiff’s reputation for financial integrity.” Finally, the complaint alleges that defendants “subsequently admitted that there existed no basis in law or fact for the” TRO because they agreed to an order dissolving the TRO on March 2, 1989.

A motion pursuant to section 2—615 (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) admits well-pleaded facts, but does not admit conclusions or conclusory allegations. (South Chicago Savings Bank v. South Chicago Savings Bank (1988), 178 Ill. App. 3d 545, 533 N.E.2d 480.) A cause of action for abuse of process requires sufficient pleading of two elements. Plaintiff must allege an ulterior purpose and an act in the use of legal process not proper in the regular prosecution of the proceedings. (Sutton v. Hofeld (1983), 118 Ill. App. 3d 65, 454 N.E.2d 681; Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill. App. 2d 456, 181 N.E.2d 601.) Moreover, actions for abuse of process are not favored. See Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 381 N.E.2d 1367.

In a marriage dissolution proceeding, it is proper to prevent one spouse from secreting or disposing of marital assets. The use of the process, i.e., obtaining a TRO, is not extraneous to the purpose of the proceeding and was the proper subject of a TRO. Thus, the seeking and obtaining of a TRO was done in the regular prosecution of the proceeding. The fact that the representations made to the court were allegedly false does not alter our holding. (See Olsen v. Karwoski (1979), 68 Ill. App. 3d 1031, 1038-39, 386 N.E.2d 444, 451 (court found no abuse of process action where plaintiff alleged certain psychiatrists filed false affidavits to expedite plaintiff’s involuntary commitment to a mental hospital).) The trial court properly dismissed the complaint for abuse of process.

Plaintiff’s reliance on Executive Commercial Services, Inc. v. Daskalakis (1979), 74 Ill. App. 3d 760, 393 N.E.2d 1365, is misplaced. Plaintiff there successfully pleaded abuse of process where defendant had used a writ of ne exeat, i.e., having her arrested, in order to extract money from the codefendants. Most notably, plaintiff was not involved in the lawsuit between the defendants and was arrested only as a means of forcing the codefendants into a position favorable to the defendant, who sought the writ of ne exeat.

Defendants’ request for the imposition of fees for the filing of a frivolous appeal under Supreme Court Rule 375(b) (107 Ill. 2d R. 375(b)) is denied. Defendants offer the contradictory argument that plaintiff has been overly zealous in filing this appeal, while defendants were merely being zealous in representing the wife in the dissolution of marriage proceeding.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing plaintiff’s cause of action is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.