text:
    KOULA SILVESTROS, Indiv. and as Ex'x of the Estate of Anthanasios S. Silvestros, a/k/a Tom S. Silvestros, Plaintiff-Appellant, v. SILVESTROS SILVESTROS, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—3264
    Opinion filed November 15, 1990.

      Barclay, Damisch & Sinson, Ltd., of Chicago (Mark W. Damisch, of counsel), for appellant.
    James H. Wolf & Associates, Ltd., of Chicago (James H. Wolf, of counsel), for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Koula Silvestros, individually and as executrix of the estate of Anthanasios S. Silvestros, a/k/a Tom S. Silvestros, brought this action against defendant, Silvestros Silvestros, in the law division of the circuit court of Cook County to enforce an alleged oral agreement to settle other actions then pending in the chancery division. Defendant filed a motion pursuant to both section 2—619(a)(7) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(7)) and the one-year provision of the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1) to dismiss the law division action. The trial court sustained defendant’s motion to dismiss with prejudice, and plaintiff has appealed. On appeal, plaintiff contends that the alleged oral agreement was not subject to the one-year provision of the Statute of Frauds.

The record discloses that this matter stems from a family dispute over a restaurant and that several complaints were filed in the chancery division (85 — CH—7505, 85- or 86-CH-7686, and 83-CH-09998). Plaintiff filed the present complaint in the law division on March 23, 1989. In the complaint, plaintiff alleged that the parties had held a pretrial conference in one of the chancery cases (85 — CH— 7505) before Judge Sophia H. Hall. Plaintiff alleged further that the parties had agreed to settle the chancery cases pursuant to the terms of an “agreed order,” which was attached as an exhibit to the complaint.

According to the alleged “agreed order,” the parties agreed to settle their disputes and defendant agreed to pay $40,000 to plaintiff. The payment terms provided for an immediate lump sum payment of $15,000, to be followed by 25 monthly installment payments of $1,000 each, plus interest. The “agreed order” stated in relevant part as follows:

“IT IS HEREBY ORDERED that judgment is entered against SILVESTROS SILVESTROS in the sum of $40,000.00 to be paid as follows:
1. $15,000.00 within two (2) days of the entry of this order.
2. The sum of $25,000.00 payable at the rate of $1,000.00 per month plus interest pursuant to Chapter 110, Section 2— 1303.
IT IS FURTHER ORDERED that in the event the judgment debtor is more than thirty (30) days late with the payment of any installment, the Plaintiff may, by notice, vacate the installment portion of this judgment and accelerate the balance due and have execution issue on the accelerated judgment.”

Only plaintiff and her attorney signed the “agreed order.” Neither defendant, his attorney nor Judge Hall signed it.

In the complaint, plaintiff sought a judgment in the amount of $40,000 based upon defendant’s breach of the alleged agreement, plus interest and attorney fees.

Defendant filed a motion to dismiss pursuant to the one-year provision of the Statute of Frauds, which states in part:

“That no action shall be brought *** to charge any person *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (Ill. Rev. Stat. 1989, ch. 59, par. 1.)

Defendant contended that the alleged agreement was to be performed over a period of 25 months and that it consequently was not capable of being performed within one year. Plaintiff responded that the clause in the agreement providing for acceleration of the debt upon defendant’s default rendered the agreement capable of being performed within one year and removed the agreement from the purview of the Statute of Frauds. Defendant replied that the acceleration clause rendered the agreement capable of being terminated but not performed within one year and consequently did not remove the bar of the Statute of Frauds.

During the hearing on the motion to dismiss, plaintiff’s attorney stated that an order was entered in December 1987 at the direction of Judge Hall “dismissing the [chancery] case.” Plaintiff’s attorney stated further that plaintiff then traveled to Greece, and that the settlement documents were mailed to her there, but that by the time she had signed and returned them to her attorney, defendant had decided not to proceed with the settlement agreement.

Plaintiff’s attorney stated that he then filed a petition pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) to vacate the December 1987 order dismissing the chancery action. He indicated that Judge Hall intended to deny the section 2 — 1401 petition because plaintiff had not exercised due diligence in returning the settlement documents here from Greece. Plaintiff's attorney contended that the prospective denial of plaintiff’s section 2 — 1401 petition in the chancery division, combined with the prospective allowance of defendant's section 2 — 619 motion to dismiss in the law division, would leave plaintiff without a remedy.

In dismissing the action in the law division with prejudice, the trial court ruled that the Statute of Frauds barred enforcement of the alleged agreement.

It is undisputed that the “agreed order” was not a writing signed by the party to be charged. (Ill. Rev. Stat. 1989, ch. 59, par. 1.) Therefore, the issue on appeal is whether the one-year provision of the Statute of Frauds bars enforcement of the alleged agreement set forth in the “agreed order.”

The test to determine if an agreement is subject to the one-year provision of the Statute of Frauds is whether, when it was made, it was capable of full performance within one year, not whether full performance was likely. (See Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 604, 440 N.E.2d 998; Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 271-72, 292 N.E.2d 52.) “[A] contract is unenforceable only if it is impossible to perform the contract within one year. [Citations.] If, however, it appears from a reasonable interpretation of the terms of the agreement that it is capable of performance within one year, the Statute of Frauds is inapplicable.” (Hartbarger v. SCA Services, Inc. (1990), 200 Ill. App. 3d 1000, 1016, 558 N.E.2d 596.) To be outside of the one-year provision of the Statute of Frauds, “the contract must be capable of being fully performed within one year and not simply terminated by some contingency such as death or bankruptcy.” Gilliland v. Allstate Insurance Co. (1979), 69 Ill. App. 3d 630, 633, 388 N.E.2d 68; see also Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 356.

On the defendant’s motion to dismiss, the trial court must treat as true all well-alleged facts in the complaint and any exhibits attached to the complaint, must construe all reasonable inferences in the plaintiff’s favor, and must consider whether the defendant has presented an affirmative defense that could defeat the plaintiff’s cause of action. Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1028.

Turning to the present case and treating as true all of the well-pleaded facts in plaintiff’s complaint and the attached exhibits, we believe that the one-year provision of the Statute of Frauds bars enforcement of the alleged agreement and defeats plaintiff’s cause of action. The alleged agreement provided for the payment of $40,000 in a particular manner, i.e., an initial payment of $15,000, to be followed by 25 monthly installment payments in the amount of $1,000 each, plus statutory interest. The agreement consequently was to be performed over a period of 25 months, not within one year, and was subject to the one-year provision of the Statute of Frauds. The presence of the acceleration clause does not compel a contrary conclusion.

The acceleration clause provided that in the event that defendant defaulted for more than 30 days in the payment of any installment, plaintiff could elect to declare the entire balance due and execute on the judgment. Plaintiff asserts that defendant could have defaulted in his payments, and that plaintiff could then have accelerated the debt, within one year from the making of the alleged agreement. According to plaintiff, the acceleration clause therefore rendered the agreement capable of being fully performed within one year, and the acceleration clause removed the bar of the Statute of Frauds. We disagree.

Acceleration would have permitted plaintiff to execute upon or attempt to enforce a judgment. There is no final judgment upon which execution could issue in this case. Even assuming the existence of such a judgment, and assuming further that defendant defaulted within one year, that plaintiff invoked the acceleration clause within one year, and that defendant was financially able to satisfy the debt, we do not believe that acceleration would have been tantamount to performance. As we observed earlier, acceleration would have permitted plaintiff to execute upon or enforce the judgment. However, plaintiff’s efforts to execute would have terminated the 25-month installment payment period prescribed by the “agreed order.” The parties might have had tax reasons or other reasons for structuring the payments over a 25-month period. Whatever their reasons might have been, the 25-month period was an explicit element of the alleged agreement which was not capable of being performed through acceleration of the debt. Indeed, acceleration of the debt would necessarily have resulted in the termination, not the performance, of the 25-month payment plan. Given these circumstances, the acceleration clause did not serve to remove the “agreed order” from the scope of the Statute of Frauds.

The contingencies of defendant’s default and plaintiff’s acceleration of the debt were similar in effect to the contingencies in Gilliland v. Allstate Insurance Co. (1979), 69 Ill. App. 3d 630, 388 N.E.2d 68, and Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345. In Gilliland v. Allstate Insurance Co., the death or voluntary departure of an employee were contingencies which would have terminated a contract to employ him until age 62, and those contingencies therefore did not remove the contract from the one-year provision of the Statute of Frauds. In Derby Meadows Utility Co. v. Inter-Continental Real Estate, the inability to obtain a public utility certificate was a contingency which not only terminated the contract but rendered it a nullity and therefore did not remove the contract from the one-year provision of the Statute of Frauds.

Our conclusion is not inconsistent with the cases cited by plaintiff. For example, in Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998, and Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 292 N.E.2d 52, the contracts were capable of being fully performed within one year despite contingencies such as plaintiff’s retirement or voluntary departure (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 440 N.E.2d 998) and plaintiff’s death or his customer’s failure to reorder certain fabric (Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 292 N.E.2d 52). In the present case, however, the contingencies of defendant’s default and plaintiff’s acceleration of the debt would have prevented performance of the alleged agreement, which specifically called for defendant to make installment payments over a period of 25 months. Martin v. Federal Life Insurance Co. and Stein v. Malden Mills, Inc., consequently are not factually analogous to the case at bar. Furthermore, Martin v. Federal Life Insurance Co. has been criticized in a recent case. See Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 254, 529 N.E.2d 281.

Finally, plaintiff asserts that the application of the Statute of Frauds will leave her without a remedy. However, the record does not show that Judge Hall actually denied plaintiff’s section 2 — 1401 petition to vacate the dismissal of one of the chancery actions, nor does the record indicate that the other chancery actions are not currently pending. We therefore reject plaintiff’s argument that she will be left without a remedy because her argument is improperly predicated upon matters which lie outside the record on appeal. See Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 92, 468 N.E.2d 459.

The judgment of the circuit court is affirmed.

Judgment affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE COCCIA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESUS SANCHEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—2720
    Opinion filed November 16, 1990.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Introduction

Following a bench trial, the circuit court found defendant Jesus Sanchez guilty of murder and sentenced him to 34 years in the Illinois Department of Corrections. In this court, Sanchez challenges his conviction and sentence on numerous grounds. We affirm for the following reasons.

Background

On November 19, 1985, Sanchez was indicted for the offense of murder, which was then defined as follows:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another *** (Ill. Rev. Stat. 1985, ch. 38, par. 9— (a)(1).)

The State alleged that Sanchez, without lawful justification, intentionally and knowingly killed Gerardo Gentil with a pipe on October 18, 1985.

Trial began on July 2, 1986. Following opening statements, Carlota Gentil testified through an interpreter conversant in the Spanish language. Mrs. Gentil stated that on October 17, 1985, she and her 31-year-old husband lived on the second floor of a three-story building at 2216 South Spaulding in Chicago. With them lived their two children, her brother-in-law, and his wife. On October 17, Gentil left for work about 2:20 p.m., taking his lunch box and keys. He normally returned home by 12:30 a.m. Mrs. Gentil awoke at 6 a.m. on October 18. She found her husband, “full of blood,” on the ground in their backyard, with his head on the cement. Mrs. Gentil hugged her husband, and tried to move him, but he was very stiff. His lunch box and keys to the back door of the house were in his hands. The keys were in his right hand, and his finger was through the key ring. He had another set of keys, for their garage, with him. Mrs. Gentil testified that between midnight and the time she found her husband, she heard no noise from their backyard.

On cross-examination, Mrs. Gentil admitted that she was sleeping between midnight and 6 a.m. The Sanchez family had moved next door four or five years earlier, into a house at the back of the lot in the yard. The family had never been in her home as guests. Mrs. Gen-til conceded that she had only been in the Sanchez home once, to tell Sanchez’s mother that he was causing problems.

Rachel Salazar was the State’s next witness. Salazar stated that she was 12 years old. She identified Sanchez, whom she knew by the name “Worm,” in open court. On a Saturday afternoon approximately three weeks before Gentil’s death, Salazar had been sent by her mother to get money for diapers and milk from her stepfather. It was still light. Salazar found her stepfather and five friends, including Gentil, at the house next door to the Gentils’ house. They were standing in front of the house. After getting the money, Salazar saw Sanchez on her way home. He stopped her and asked if she knew “them guys and I told him yeah.” Sanchez made a movement with his chin in the direction of her stepfather, Gentil, and their friends. Salazar pointed to them and responded affirmatively. Sanchez then said “One of these days I'm going to get rid of all these f — ing braziers.” Salazar testified that the term “braziers” meant Mexican immigrants. Sanchez objected to this testimony on the grounds of relevance, but the circuit court overruled his objection.

On cross-examination, Salazar admitted that she did not recall when she told her mother about the incident. Gentil was a friend of her mother and stepfather. She had never had a conversation with Sanchez before. She and Sanchez were less than one block from her stepfather, Gentil, and the others when they had the conversation. Salazar could see the entire group from where she and Sanchez were talking. His exact words, as best she could recall, were that he was “going to get rid of all the f — ing braziers.” After hearing this, she left and walked away. Salazar testified that she never had another conversation with Sanchez. Sanchez renewed his motion to strike her testimony, and the circuit court overruled him again.

The State then called Chicago police officer James Ruhnke. Officer Ruhnke stated that he was on duty the morning of October 18. He was dispatched to 2216 South Spaulding at 6:10 a.m. He found the body of a man near the garage, closer to the garage than the house. Officer Ruhnke also found an orange and white baseball cap, along with a gym bag. The gym bag was located to the left of the victim, near his feet. Two fire department personnel were checking him for vital signs. Officer Ruhnke noticed a wound on the victim’s head. He testified that it was his duty to protect the scene and make sure nothing was disturbed. On cross-examination, Officer Ruhnke admitted that he did not recall finding or recovering keys from the victim.

Chicago police detective Dennis Keane testified for the State. Detective Keane stated that on October 31, he and his partner, Detective Greg Baiocchi, were investigating the Gentil homicide. They went to Sanchez’s home, at 2220 South Spaulding, where they met his mother. They left a business card with her and received a call from Sanchez in the morning of November 1. They returned to Sanchez’s home about 10 a.m. that same day. Sanchez, whom Detective Keane identified in open court, agreed to accompany them to Area 4 Violent Crimes, at Harrison and Kedzie. After bringing Sanchez to the interview room, they gave him the Miranda warnings. According to Detective Keane:

“We informed him [Sanchez] his name had come up in our investigation as a possible offender. And at that point he told us that he heard the same thing, that he understood on the street from a friend of his that he was involved along with two black guys, by the name of Thurman and Tony, and that these two black guys were seen leaving the area in a black vehicle. * * *
He told us that on the evening of the homicide, which was the 17th, he was on the street with his brother. They were out walking the family dog, that they returned to the house approximately 10:30 that evening, they went up on to the — back into the house up on the second-floor bedroom. They both listened to some music and he fell asleep. * * *
The only thing he knew was the next day, the next morning, between 6:00 and 6:30, he heard some screaming. He got up, along with other family members, and that they found out that the neighbor had been killed.
The next day he found out that he was supposedly involved in it.”

Sanchez voluntarily accompanied Detective Keane and his partner to police headquarters, at 1121 South State, around 2:30 p.m. Detective Keane testified that about 4:45 p.m., on the fifth floor, they had another conversation with Sanchez. They again advised him of his constitutional rights. Detective Keane stated:

“I first informed him [Sanchez] that I didn’t believe what he was telling us, I thought he wasn’t being truthful with us, that he knew more about what had happened.
And at that point he told us that he was in fact out there the night that his neighbor had been killed and that it was a male black by the name of T-Bone, that T-Bone had done it. * * *
He stated that he works at Burger King downtown, and he had met T-Bone at the Burger King. T-Bone had come around several times and he got to know him from him coming in.
That from knowing him he had told T-Bone that he was having problems with a neighbor. And T-Bone had informed him that he would take care of it, but that Sanchez would have to give T-Bone the time that his neighbor got home.
At that point Sanchez gave T-Bone his own phone number and told T-Bone to call him at home and that he would let him know when the neighbor got home every night. - * * *
He stated on October 17th T-Bone did in fact call him at home and that he told T-Bone that the neighbor got home about midnight, about 12:00 o’clock midnight, and that he would be waiting for him out in the alley when T-Bone arrived. * * *
He said that he was out in the alley, when T-Bone arrived, and that he pulled up in a car and that they both waited for the neighbor, Gentil, to come home, and that he, when Gentil came home, parked his car in the garage, and was leaving the garage when Gentil was then approached by T-Bone. T-Bone walked into the yard and approached Gentil.
At this point there was a fight, a fist fight, and T-Bone knocked Gentil to the ground.
He then observed T-Bone walk back to the car and at this time he takes a paper bag from another male black, who had been sitting in the car. He takes that out of the car and he walks back into the yard, where Gentil had been knocked to the ground, and was still on the ground. From the paper bag he removed a hatchet. He sees T-Bone remove a hatchet and he then strikes Gentil one time on the top of the head. * * *
He stated that at that point he got scared, so he ran around to his entrance of his house, up the stairs to the second floor, and he looked out his bedroom window. At that point he said he sees T-Bone strike the victim again in the head with this hatchet. T-Bone then leaves the area. * ** *
*** [H]e said that he didn’t think T-Bone was going to kill him. He just thought that T-Bone was going to beat him up and take his money.”

Detective Keane testified that he and his partner then arrested Sanchez, and they returned to Area 4, where he was again advised of his rights. Detective Keane and his partner noticed certain contradictions and inconsistencies in Sanchez’ second story, and they informed him of this. Sanchez told them he wanted time to think things over. They left the room for a while and, upon their return, Sanchez confessed. They then were joined by an assistant State’s Attorney (ASA), who had a conversation with Sanchez during which he confessed to killing Gerardo Gentil. Following this conversation, the ASA wrote down Sanchez’s confession on a form. After reading his confession, Sanchez signed it, as did the ASA, Detective Keane, and his partner. Detective Keane read the confession in court:

“After reading, Jesse [Sanchez], his rights, per Miranda, and telling him that I am an Assistant State’s Attorney working for the police and not his attorney he stated the following in summary but not verbatim.
That on Thursday, October 17, he went to a store at about 11:45 p.m. to talk to the owner. He left that store about ten minutes later to go home. He walked down the alley to his gate, but it was locked. He then went next door to Genardo’s [sic] house to use his gate and went into Genardo’s [sic] yard.
He stated that he closed the gate and began walking in Genardo’s [sic] yard, when Genardo [sic] said what are you doing here. Genardo [sic] then approached him and slapped him in the face. He then started fighting with Genardo [sic]. Genardo [sic] did not have anything in his hands when he approached Jesse. Genardo [sic] then swung him to the ground but then let him up. When he got up he picked up a brick and threw it at Genardo [sic], striking Genardo [sic] on the right side of the neck and hand.
Genardo [sic] still approached him and he picked up a pipe in the yard and struck Genardo [sic] on the left side of the head. Genardo [sic] fell to the ground and he hit Genardo [sic] with the pipe on top of the head while Genardo [sic] was on the ground.
He tried to wake up Genardo [sic], and then threw the pipe into his yard, and he jumped the fence, picked up the pipe, and wiped it clean with his shirt and took the pipe to his room.
The next day he took the pipe and got rid of it by throwing it into Colonial Brick.
He told [sic] that he could read and write English.
He also stated to me that Genardo [sic] was swearing at him prior to being slapped and Genardo [sic] was swearing in Spanish.”

On cross-examination, Detective Keane stated that the fence behind Sanchez’s home was higher than the fence between Sanchez’s home and Gentil’s property. Detective Keane conceded that Sanchez had behaved in a courteous and polite manner during the questioning. About 11 hours elapsed between the time he and his partner went to Sanchez’s home in the morning of November 1 and the time the latter confessed. After the confession they brought Sanchez to Cermak and Christiana, where Colonial Brick was located. Detective Keane testified that they were unable to find the pipe Sanchez mentioned in his confession.

Detective Angelo Rinchiuso testified for the State. He stated that he investigated Gentil’s homicide on October 18. Detective Rinchiuso arrived at 2216 South Spaulding about 6:20 a.m. He found a three-flat building with a yard in back. To the west of the yard was a garage with a service door entrance. The yard was enclosed by fences on both the south and north ends. There was a gangway on 2216, running from the front sidewalk to the rear alley. The yard’s dimensions were 25 feet by 30 feet. He found Gentil on his back, about five feet from the garage. Gentil’s head was on the sidewalk in a pool of blood, and his feet were facing north while his head was facing south. The rest of his body was on the grass. His blood had coagulated, and the body was stiff and cold. Gentil had several injuries on the left side of his head. To the right of Gentil was a baseball cap, two feet from his head. There was a three-inch gash in the bill of the cap, on its left side, and hair was embedded in the gash. Underneath Gentil’s left leg were several keys on a key ring, including a house key and a garage key. Next to his left arm was a blue lunch box or pail. A search of the surrounding area revealed no bricks or pipes. Detective Rinchiuso’s inspection of the garage revealed a service door facing east and an overhead door facing west, into the alley. In order to raise the door, one would have to remove a two-by-four block from inside the garage. There were two automobiles in the garage. Detective Rinchiuso testified that the service door had been locked with a key.

On cross-examination, Detective Rinchiuso confirmed that he found Gentil five feet from the service door and 10 to 15 feet from the house. The lunch pail was not made out of hard material. Detective Rinchiuso stated that the fence behind Sanchez’s house was about six feet high, and the fence between his home and Gentil’s property was about three or four feet high.

William Daffron then testified for the State. Daffron stated that he was a foreman at the engineering firm where Gentil had worked since 1976. Daffron last saw him about 11:50 p.m. on October 17. Daffron testified that Gentil punched out at 12:01 a.m. on October 18.

The State’s last witness was Barry Lifschultz, deputy medical examiner of Cook County. The parties stipulated that Dr. Lifschultz was an expert in the field of forensic pathology. He stated that he performed an autopsy upon Gentil on October 19. Dr. Lifschultz found the following injuries:

“On the left side of the head in the front there was a laceration or tearing of the skin *** which was three inches by three-quarters of an inch in size.
Then on the left back of the head there was another laceration or tearing of the skin which was four inches by one-half inch.
Underneath those two lacerations there was subgaleal hemorrhage or bleeding under the surface of the scalp and underneath the scalp, the skull in the front mid portion and back of the head was caved in with a depressed skull fracture.
Underneath the skull fracture there was bruising and there was tearing of the surface of the left side of the brain. * * *
There were several small additional injuries. There was a bruise on the left side of the head. There was an abrasion or scraping away of the skin on the left side of the head and then there was also a linear laceration or cut on the left side of the head.
Also there was a laceration or tearing of the skin on the left lip. It was the lower lip and there was also bruising on the inner surface of the upper lip.
Finally, there was also a bite mark on the tongue.” (Emphasis added.)

No other injuries were found on Gentil. Blood test results for alcohol, opiums, and metabolid of cocaine were negative. Dr. Lifschultz opined, within a reasonable degree of medical certainty, that Gentil died as a result of cranial and cerebral injury or injuries to the skull and brain due to blunt trauma, consistent with the use of a metal pipe.

On cross-examination, Dr. Lifschultz admitted that there were no injuries to the “back” of Gentil’s head, with that term defined as the area directly above the neck. But Dr. Lifschultz stated that there was bleeding on the left back of the head, although not directly over the middle of the neck. There was no additional damage to the back of the head. Dr. Lifschultz conceded that he did not know how the smaller injuries to Gentil’s head and face were caused; however, they could have been caused by any blunt instrument. At the time of the autopsy, Gentil was 5 feet 6V2 inches tall and he weighed 166 pounds. On redirect examination, Dr. Lifschultz repeated that the injuries to Gentil’s face could have been caused by his falling to the ground. The State then rested its case.

After Sanchez’s oral motion for a directed finding was denied, Alfredo Miranda testified for the defense. The 20-year-old Miranda stated that he was Sanchez’s cousin and that he resided with the latter’s family from January until August of 1984. Miranda had met Gentil on several occasions. Over the State’s hearsay objection, he testified that Gentil made comments to him and his cousin regarding their black friends Thurman and Thomas in the summer of 1984. According to Miranda, Gentil said that they had no right to bring blacks into the neighborhood and that they were spray painting his garage. Gentil would blame Miranda, Sanchez, and their friends for everything that happened to his house or car. Miranda testified that these comments continued until Gentil was killed.

Miranda stated that in June of 1984, while he was living with the Sanchez family, he and Gentil had a fight. Over the State’s relevancy objection, Miranda testified that he, his younger brother Julio, and Sanchez were playing catch with a softball in the alley directly behind Gentil’s property. Miranda threw the ball into Gentil’s yard, and Sanchez went to retrieve it. Miranda was standing in the alley by the back gate. Sanchez found the ball and began walking out of the backyard. Gentil began to chase Sanchez, and he ran by Miranda. Gentil grabbed a baseball bat and struck Miranda on his side. Miranda took the bat from Gentil and struck the latter on the jaw with his fist. The fight ended when Gentil was held back by another man. Miranda stated that Gentil “told us that if we ever go in his yard again that we would pay for it”; Miranda replied “f— you.” Miranda never had a cordial, polite, or friendly conversation with Gentil, who directed many comments against Sanchez and his family. In the spring of 1985, Miranda stated, he noticed some pipes in Gentil’s yard, left over from a gardening project the previous summer.

Jesse Aguilar also testified for Sanchez. Aguilar stated that he had known Sanchez for three years. He was a teacher of Sanchez’s at the University of Illinois’ General Educational Development (GED) program. Over the State’s objection, Aguilar was permitted to testify that Sanchez was a peaceful and quiet person, who gave him no trouble in class. On cross-examination, Aguilar admitted that he did not know Sanchez’s reputation for peacefulness in his neighborhood.

Janelle Smith then testified as a character witness for Sanchez. Smith stated that she was a GED teacher and that Sanchez was a former student of hers. The other students liked him, and he was peaceful and quiet, an ideal student. On cross-examination, Smith conceded that her only knowledge of Sanchez came from the classroom.

Julio Miranda testified for Sanchez. Julio stated that he was Sanchez’s 17-year-old cousin. Jesus Sanchez was also known as Jesse. Julio’s testimony concerning the fight between his brother Alfredo and Gentil is substantially similar to Alfredo’s. However, Julio remembered that the incident took place in July of 1984, rather than in June. On cross-examination, Julio confirmed that Sanchez’s nickname was “Worm.” Julio admitted that he had never seen Gentil attack anyone, apart from his brother.

Sanchez himself then testified. Sanchez stated that he was 18 years old in October of 1985. At that time, he was attending GED classes and working in a Burger King at Sears Tower. Sanchez’s account of the fight between Miranda and Gentil is similar to his cousins’, including Gentil’s statement that he did not want to see them in his yard again. Other than this incident, Sanchez never spoke with Gentil until the night he killed his neighbor. Sanchez’s testimony concerning Gentil’s statements to him, his cousins, and their friends is also consistent with the Mirandas’. According to Sanchez, Gentil was never friendly to them.

Sanchez stated that, around midnight on October 18, he was on his way home after searching unsuccessfully for his friends. He found himself in the alley behind his home. The gate was locked, and he was reluctant to climb the high fence. He decided to take a shortcut through Gentil’s yard, which Sanchez had done before without his neighbor’s knowledge. Instead of taking the shortcut, Sanchez admitted, he could have gone down the alley and around to the front of his house. After entering Gentil’s yard through the gate, Sanchez heard the sound of keys and saw Gentil standing by his garage. He asked Sanchez what the hell he was doing there. Sanchez replied that he was taking a shortcut. Gentil slapped him in the face. Sanchez became dizzy, put his head down, and pushed Gentil back. Gentil hit him on the chest, and as he was falling, Gentil punched him in the stomach. While he was on the ground, Gentil kicked him. Sanchez found a brick and threw it at Gentil. He did not know whether he struck Gentil, but saw the latter with his arm over his face. Sanchez tried to get away, over the opposite fence, but Gentil knocked him down from behind. Sanchez was frightened because Gentil was larger than he was. Afraid that Gentil would hurt or kill him, Sanchez picked up a pipe. Gentil approached him, and he backed up. Sanchez closed his eyes and began swinging. When he opened his eyes, Gentil was on the ground. Sanchez was still scared. Gentil looked like he was about to get up and hit him again or grab something, so Sanchez hit Gentil with the pipe again — while his neighbor was on the ground — and ran home. Sanchez hid the pipe under his bed, but he was too frightened to sleep. He did not realize how badly he hurt Gentil, thinking instead that the latter was unconscious. The next morning Sanchez heard screaming. He did not mean to kill Gentil and would not have struck him if Gentil had not struck the first blow. Sanchez conceded that he did not tell the police the truth initially. Sanchez claimed that he had bruises on his back after the fight, which were caused by Gentil’s kicks. Sanchez stated that the police did not ask to see his bruises. It is not clear from the record, however, that Sanchez told the police he was bruised.

On cross-examination, Sanchez confirmed that his nickname was “Worm.” Sanchez conceded that he and Gentil did not like each other. Before confessing to the police, Sanchez testified, he told them that he told “T-Bone” thát he was having problems with Gentil. Sanchez admitted that he knew Gentil did not want him in the yard, and he knew the yard was completely enclosed. His only excuse for cutting through Gentil’s yard was that he did not wish to take the long way around. Gentil was unarmed during the incident. Sanchez stated that he was right-handed. Gentil was facing Sanchez when he struck his neighbor with the pipe. Sanchez repeated that Gentil was on the ground, when he hit the latter a second time with the pipe. Sanchez’s eyes were open for the second blow. Sanchez never went to the hospital to be treated for his alleged injuries. He never saw Gentil’s lunchbox.. Sanchez never told the police that he tried ■ to escape over the opposite fence. During the entire incident, Gentil was.swearing at him in Spanish. Sanchez was too scared to yell for help, and no one heard Gentil yelling at him. After. hitting Gentil the second time with the pipe, Sanchez shook him to see if he was awake. As Gentil failed to wake up, Sanchez concluded that he was unconscious. Although Gentil appeared to be injured, Sanchez left his neighbor in that condition, afraid that he would get up again. When he got home, Sanchez told no one of Gentil’s condition because he was frightened. But Sanchez conceded that he was not afraid to throw the pipe away at Colonial Brick, in order to dispose of it. Finally, on redirect examination, Sanchez testified that he was 5 feet 5 inches tall and weighed 145 pounds in October of 1985.

Lastly, Alfredo Miranda was recalled as a character witness for his cousin. Miranda testified that Sanchez was a very quiet, peaceful, and law-abiding person. On cross-examination, Miranda confirmed that his cousin was also known by the name of “Worm” in the neighborhood.

Following closing arguments, the circuit court found Sanchez guilty of murder. The circuit court stated:

“The court has considered the arguments of counsel and the evidence heard on the trial of this case, and the Court has considered not what was close to the evidence but what the evidence was.
The court finds that after a long period of animosity between the victim and" the defendant, and other people of the defendant’s household, that it is not credible or reasonable to believe that the defendant, at midnight, entered the enclosed yard of the victim, who had been his antagonist and enemy over a long period of time.
It’s not reasonable to believe that the defendant would have entered this enclosed yard at midnight for any lawful purpose.
There’s no evidence of any kind of any running around or a chase or a struggle in this yard. There is evidence that the victim was struck with a great and killing force, struck with mortal wounds, with a killing instrument, heavy pipe.
That the victim was but a few feet from his garage door, that he was holding evidently a lunch bucket and keys, which were found in his hand or near his hand, which, quite evidently, dropped when he was struck.
Had there been any kind of running around or chase, it’s inconceivable that the victim would have been carrying his keys and lunch bucket during the chase.
The Court believes that the evidence establishes beyond a reasonable doubt that the defendant, Jesus Sanchez, is guilty of murder of Gerardo Gentil and the Court so finds.”

After the denial of Sanchez’s motion for a new trial on September 29, 1986, a sentencing hearing was held. The circuit court admitted a victim impact statement signed by Mrs. Gentil, over Sanchez’s objection that certain statements in it were prejudicial. The statement in-eludes the following remarks by Mrs. Gentil:

“[M]y daughter Fanny has been upset with the death of her father. The school contacted me so they can seek counseling for her. I have filled some form[ ]s so they can seek help for her[ ]. She is always crying due to the death. * * *
*** [I]t has affected my family and I[ ], my husband supported my family and me. Since then I had to move into my sister in lawf’s] home. They have had to support my two children and me. I had applied for Sociel [sic] Security from my husbandf’s] benefits. I can[’t] work because I have to stay with my children, have been in shock[ ], they saw there [sic] father lying on the ground dead in a [sic] of blood. * * *
I had to move from my place of residence. Our lifes [sic] have changeed [sic] the killing of my husband will effect [sic] us for the rest of our lives. * * *
I can’t eat I feel like a prisoner in my own home. I fear for the safty [sic] of my family and me[ ], I can’t sleep or cope with every day life[ ]. I also fear for the defendant family because I think that they might hurt my family or me. * * *
I would like for justice’s [sic] to be done, I wouldn’t want this man to go free to hurt my family or me. For example if the murder [sic] of my husband got fifty years in jail I wouldn’t be satisfied [ ], my husband[’s] life was worth more than that. I see it as a life for a life[ ], the dead [sic] sentence is what he deserves. This should be an example to every one who takes a precious life away for no reson [sic] or cause. The damage this murder has done to our family, entire family. He has left my children with out a father or me a husband. The pain and nightmare will never end it will last a life time, and for that reason my family and I have attented [sic] each and every court session because we want justice done.”

After the parties presented evidence in aggravation and mitigation, Sanchez expressed remorse. The circuit court then stated:

“The Court has considered the presentence report, the victim impact statement, the statements of Counsel, the statement of the defendant, and the evidence heard on the trial of this case which the Court found was uncalled for and vicious and brutal attack upon the victim in his own yard. Whatever prompted the defendant, evidently, the animosity referred to by Counsel that built up over a period of time resulted into this regrettable act.
The Legislature has fixed the penalties for murder and has left it within certain bounds for the Court to determine in each case. The Legislature has set a number of factors for the judge to consider in setting the penalty in each homicide or murder case. The Court has considered all of those statutory suggestions, and the Court affixes the penalty in this case at a term of thirty-four years in the penitentiary system of the Illinois Department of Corrections.”

Sanchez was represented by private counsel at trial, and the circuit court appointed the public defender to represent him on appeal.

Analysis

In this court, Sanchez argues that the circuit court erred in admitting Salazar’s testimony regarding his collateral threat to get rid of Mexican immigrants. He also contends that the evidence does not support his murder conviction. Specifically, he asserts that the evidence was insufficient to rebut his self-defense claim; in the alternative, should we deem that claim unreasonable, he urges that the murder conviction be reduced to voluntary manslaughter. Concerning his sentence, Sanchez maintains that he was denied a fair sentencing hearing. And he asserts that his 34-year prison sentence was excessive.

THE EVIDENCE ISSUES

Taking these points in the foregoing order, we first come to Sanchez’s argument that Salazar’s testimony regarding his collateral threat was prejudicial and irrelevant to whether he committed murder. The leading case he relies on in support of this proposition is People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 50. In Lampkin, an all-white jury convicted a black defendant of murdering a white Illinois State trooper and sentenced him to death. At trial, a Chicago police officer testified that, in 1973, defendant told him during questioning, “You white honky coppers are [expletive deleted] with us now, and we will get you later.” In the supreme court of Illinois, defendant argued that the prejudicial nature of this testimony denied him a fair trial. The supreme court agreed. The court reasoned that to hold admissible a threat made by the defendant against the person actually killed is categorically different from saying that a general threat not directed towards any one person is admissible to show malice and criminal intent. In the case before it, stated the court, there was no indication that the statement at issue meant that violence would be perpetrated on the person eventually slain. (Lampkin, 98 Ill. 2d at 427, 457 N.E.2d at 55.) According to the court, defendant’s statement was so general and impersonal that it could not be reasonably characterized as being directed towards anyone in particular. (Lampkin, 98 Ill. 2d at 427-28, 457 N.E.2d at 55.) Defendant’s statement should have been excluded, the court concluded, because it was irrelevant, it had little or no probative value, and it very likely caused prejudice or hostility on the jury’s part. (Lampkin, 98 Ill. 2d at 428, 457 N.E.2d at 55.) Therefore, the prejudicial effect of defendant’s alleged statement made six years earlier outweighed any probative value the evidence might have had. Lampkin, 98 Ill. 2d at 429, 457 N.E.2d at 56.

The facts of our case are not analogous to the facts of Lampkin. Sanchez’s statement, related by Salazar, to get rid of Mexican immigrants was not as general or impersonal as the statement at issue in Lampkin. We cannot say that there is no indication that the statement meant that violence would not be perpetrated on Gentil. Defendant in Lampkin made a generally threatening statement regarding all white police officers to a white Chicago police officer, and six years later he killed a white State trooper; here, Sanchez made a threatening statement concerning a small group of Mexican immigrants, and he killed one of the group a few weeks or months thereafter. In short, we think the circuit court properly concluded that whatever prejudicial effect the statement had was outweighed by its probative value.

It is also significant that defendant in Lampkin was tried before a jury, while Sanchez was tried before a judge. As the State notes, there is a presumption that the trial court considered only competent evidence, although this presumption may be overcome when the record affirmatively shows the contrary. (See People v. Barbour (1982), 106 Ill. App. 3d 993, 1001, 436 N.E.2d 667, 673.) In Barbour, the trial judge commented at length about improper evidence before finding defendant guilty. Here, in response to Sanchez’s objection during the State's rebuttal to his closing argument, the trial judge stated that he did not consider Salazar’s testimony “especially relevant.” More importantly, the circuit court made no mention of Salazar’s testimony when finding defendant guilty. Thus, Sanchez has not overcome the presumption that the circuit court considered only competent evidence.

Whether Sanchez has overcome this presumption is closely linked to the question of harmless error. But even if the circuit court improperly admitted Salazar’s testimony, or even if Sanchez had overcome the presumption that the circuit court considered only competent evidence, any error that might have occurred regarding her testimony was harmless beyond a reasonable doubt. That is, there is no reasonable possibility that her testimony contributed to his conviction. (See Barbour, 106 Ill. App. 3d at 1002, 436 N.E.2d at 674.) Sanchez asserts that the only evidence of animosity was that apparent in the collateral threat related by Salazar. Contrary to Sanchez’s assertion, however, there is ample evidence of animosity apart from that evident in her testimony. Mrs. Gentil, Sanchez’s cousins, and Sanchez himself testified at length about such animosity. In addition, Sanchez’s “T-Bone” story (his second untruthful story, in which he told the police that he asked T-Bone to beat up Gentil because of his problems with the latter) reflects a certain animosity, albeit in the guise of fantasy. Accordingly, there was sufficient evidence, apart from that testified to by Salazar, from which the circuit court could conclude that Sanchez harbored animosity regarding his neighbor.

We now turn to Sanchez’s challenge to the sufficiency of the evidence. In the first place, he contends that the evidence was insufficient to rebut his self-defense claim, because there were no eyewitnesses to the incident, because Gentil had shown aggressive behavior in the past, and because the physical evidence was consistent with his explanation of innocence. Sanchez’s principal case in support of this point is People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651. In that case, the supreme court reversed defendant’s voluntary manslaughter conviction on the basis of her self-defense claim. Defendant gave three prior inconsistent explanations for her husband’s death. At trial she testified that she killed him in self-defense, by striking and jabbing him with a stick during a struggle. Relying on People v. Willson (1948), 401 Ill. 68, 81 N.E.2d 485, the supreme court stated that where the only evidence in a homicide prosecution is circumstantial, the defendant’s guilt must be so thoroughly established as to exclude every other reasonable hypothesis. In the case before it, the court ruled, the evidence did not carry with it a reasonable certainty of defendant’s guilt. Because a reasonable doubt existed as to whether defendant was not guilty by virtue of acting in self-defense, the court held that the doubt should be resolved in her favor. See Lewellen, 43 Ill. 2d at 78, 250 N.E.2d at 654.

However, the reasoning upon which the Lewellen court grounded its holding has been undermined by subsequent decisions. In People v. Pintos (1989), 133 Ill. 2d 286, 549 N.E.2d 344, for example, defendant claimed that the evidence in a bench trial was not sufficient to support his drug conviction. Defendant argued that as the evidence was entirely circumstantial, it should be reviewed under the reasonable hypothesis of innocence standard. The supreme court rejected this argument. Citing Willson and Lewellen, the court acknowledged that the standard of review in cases where the evidence is wholly circumstantial was formerly the reasonable hypothesis of innocence test. (See Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.) But, the court went on to observe, that test was explicitly rejected in People v. Eyler (1989), 133 Ill. 2d 173, 191-92, 549 N.E.2d 268, 276. Consequently, the court concluded that the reasonable hypothesis of innocence standard is no longer viable in Illinois. Instead, the reasonable doubt test of People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, should be applied in reviewing the sufficiency of the evidence in all criminal- cases, be the evidence direct or circumstantial. (See Pintos, 133 Ill. 2d at 291, 549 N.E.2d at 346.) Collins declared that a criminal conviction should not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. See Collins, 106 Ill. 2d at 261, 478 N.E.2d at 276.

With this in mind, it is clear that in order to establish his self-defense claim, Sanchez was required to show that unlawful force was used against him, he was not the aggressor, he believed the danger of harm was imminent, force was necessary to avert the danger, and the amount of force used was necessary. (See People v. Lewis (1990), 198 Ill. App. 3d 976, 983, 556 N.E.2d 697, 701.) Whether a killing is justified under the law of self-defense is a question of fact to be determined by the trier of fact. (See People v. Felella (1989), 131 Ill. 2d 525, 533, 546 N.E.2d 492, 495.) That determination shall not be disturbed on appeal unless the evidence is so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. (See Felella, 131 Ill. 2d at 533-34, 546 N.E.2d at 495, citing Collins, 106 Ill. 2d 237, 478 N.E.2d 267.) Where the evidence at trial is conflicting, the trial judge — who sees and hears the witnesses testify — is entitled to weigh their credibility, draw reasonable inferences from their testimony, and resolve conflicts in the evidence when determining the reasonableness of the defendant’s action in killing the deceased. In other words, where the evidence is conflicting, an appellate court should not substitute its judgment for that of the trial judge. See Felella, 131 Ill. 2d at 534, 546 N.E.2d at 495-96.

Applying these principles of review to the facts of our case, we conclude that the circuit court did not err in deciding that the State rebutted Sanchez’s self-defense claim. Without laboring matters unnecessarily, we do not find the evidence to be so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt that Sanchez murdered Gentil. The conflicts in the evidence were for the circuit court to resolve. Sanchez’s observation that there were no eyewitnesses rings especially hollow, as we have only his actions to thank for the fact that he was the only witness.

Sanchez also argues, alternatively, that his murder conviction should be reduced to voluntary manslaughter should we deem his self-defense claim (in allegedly grabbing an available blunt object so as to stop an ongoing fight) unreasonable. He cites the cases of People v. Vaughn (1975), 26 Ill. App. 3d 247, 324 N.E.2d 697, and People v. Johnson (1972), 4 Ill. App. 3d 249, 280 N.E.2d 764, to buttress this argument. In Vaughn the evidence established, without conflict, that the defendant was forcibly removed from a VFW hall before he shot the deceased; the evidence in Johnson clearly showed that the deceased was the aggressor.

In contrast, the relevant evidence here is conflicting. On the one hand, Sanchez testified that he picked up the pipe, fearing for his life, to ward off Gentil after he was surprised by his neighbor. On the other hand, the State presented evidence showing that it was Gentil who was surprised, because he was found near his locked garage door, with his keys and lunch pail near his hands, and wounds on the back of his head. As the supreme court reasoned in Felella, it was for the trial judge to resolve these conflicts.

THE SENTENCING ISSUES

Initially, Sanchez maintains that he was denied a fair sentencing hearing, because the circuit court considered the severe financial, personal, and emotional impact of the crime on Gentil’s family, including Mrs. Gentil’s recommendation that her husband’s death be avenged. Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act provides:

“Rights to present victim impact statement. In any case where a defendant has been convicted of a violent crime *** and a victim of the violent crime is present in the courtroom at the time of the sentencing or the disposition hearing, the victim upon his or her request shall have the right to address the court regarding the impact which the defendant’s criminal conduct *** has had upon the victim. If the victim chooses to exercise this right, the impact statement must have been prepared in writing in conjunction with the Office of the State’s Attorney prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing. The court shall consider any statements made by the victim, along with all other appropriate factors in determining the sentence of the defendant ***.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 1406.)

In Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the United States Supreme Court held that the presentation of victim impact evidence to a sentencing jury in a capital case is unconstitutional. In Felella, the supreme court of Illinois refused to extend the reasoning of Booth to noncapital cases. See Felella, 131 Ill. 2d at 535-36, 546 N.E.2d at 496.

In the wake of Felella, Sanchez is left with his theories that, first, section 6 does not permit the introduction of a victim impact statement where the victim (here Mrs. Gentil) does not testify at the sentencing hearing, and, second, that the circuit court improperly relied on Mrs. Gentil’s emotional comments in her written statement. Concerning Sanchez’s first theory, we note that his trial counsel did not raise it at the sentencing hearing. But even if this point were properly preserved for review, we find nothing in the text of section 6 which mandates that a victim testify at the sentencing hearing in order for her written impact statement to be admissible. Rather, as we read section 6, it grants a victim the right to address the court during the sentencing hearing if she elects to do so and then requires that a written impact statement be prepared in advance of the hearing at which she will testify.

In People v. Wallace (1988), 170 Ill. App. 3d 329, 524 N.E.2d 677, defendant argued that the circuit court erred in allowing the prosecutor to read the victim’s letter into evidence although she was not present in the courtroom. According to defendant, the plain language of the Act required the victim to be present before her impact statement could be considered. Defendant contended that the victim’s presence would ensure the reliability of her statement and that her absence denied him the constitutional right to confront his accuser. The appellate court rejected these arguments. The court stated that a defendant already adjudged guilty does not have the right to cross-examine all out-of-court sources relied upon in sentencing. (See Wallace, 170 Ill. App. 3d at 333, 524 N.E.2d at 679.) In fact, the court noted, hearsay evidence may be considered at a sentencing hearing. Moreover, the court concluded, Illinois has mandated as a matter of policy that a crime’s impact on the victim be considered. (See Wallace, 170 Ill. App. 3d at 334, 524 N.E.2d at 679-80.) In People v. Fields (1990), 198 Ill. App. 3d 438, 441-42, 555 N.E.2d 1136, the court rejected similar arguments. We readily conclude, then, that" Mrs. Gentil was not required to testify at Sanchez’s sentencing hearing in order for her written victim impact statement to be admitted or considered.

We likewise reject Sanchez’s second theory, namely, that the circuit court erroneously considered the emotional comments in Mrs. Gentil’s victim impact statement. He makes much of the following remarks of the circuit court, which were made during the sentencing hearing:

“Well, I understand that this is the statement of a member of the victim’s family who has very deep feelings.”

Sanchez refuses to acknowledge, however, that these remarks must be read in context. The circuit court made them in response to his objection that the statement included prejudicial comments from Mrs. Gentil. We understand the circuit court to be saying that it realized the emotional nature of some of her comments, and that it would not be unduly swayed by them. Similarly, when the circuit court stated that it took the victim impact statement into consideration in imposing sentence, it was doing no more than the text of section 6 mandates. In Fields, the appeals court refuted defendant’s argument that a written victim impact statement from the mother of the woman he murdered was improperly admitted. The reviewing court relied on the presumption that the trial judge recognized and disregarded any incompetent evidence during sentencing. (See Fields, 198 Ill. App. 3d at 441, 555 N.E.2d at 1139.) Here, Sanchez has not rebutted this presumption to our satisfaction.

Finally, we come to Sanchez’s objection to the length of his 34-year sentence. He asserts that this severe sentence was an abuse of discretion, as he had no prior criminal record, as there was evidence that he acted in self-defense, and as there were no aggravating circumstances not inherent in the offense itself. At the time Sanchez was sentenced, the statutory range for murder was 20 to 40 years in prison. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1).

The principles that govern our resolution of this question are not controversial. Imposition of sentence is a matter within the purview of the circuit court, and its decision is entitled to great deference and weight. A sentence within the statutory range described for the offense will not be disturbed on review absent an abuse of discretion. (See People v. Lewis (1989), 191 Ill. App. 3d 155, 162, 547. N.E.2d 599, 603.) In setting forth the reasons for the sentence imposed, the court need not recite and assign a value to each fact presented at the hearing. And, it is presumed that the court considered all evidence offered in mitigation absent some statement to the contrary. (See People v. Crews (1989), 191 Ill. App. 3d 228, 236, 547 N.E.2d 580, 586.) Nothing in the sentencing guidelines prohibits the circuit court from considering the brutal or heinous character of defendant’s conduct when evaluating a nonextended-term sentence. See People v. Duncan (1990), 196 Ill. App. 3d 343, 346, 553 N.E.2d 774, 776-77.

Given the deferential standard of review and the facts of this case, we cannot say that the circuit court abused its discretion in imposing a 34-year sentence. We refuse to overturn a midrange sentence imposed upon a trespasser who — as he himself admitted — mortally wounded an unarmed neighbor by hitting him more than once in the head with a pipe, and then hid the weapon after leaving his victim to die. Compare People v. Hood (1989), 191 Ill. App. 3d 129, 136, 547 N.E.2d 637, 643 (appellate court concludes that defendant’s 30-year murder sentence was not an abuse of discretion, where she repeatedly stabbed an intoxicated man she did not fear and could have rebuffed without a knife).

Conclusion

For the reasons stated, we hold that Sanchez was properly convicted of murder and that he was properly sentenced to 34 years in the Department of Corrections.

Affirmed.

GORDON and LORENZ, JJ., concur.

      The offense formerly defined as murder is now defined as first-degree murder; similarly, voluntary manslaughter is now defined as second-degree murder. See Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 9 — 2.

      The statutory range for first-degree murder is now 20 to 60 years in prison. See Ill. Rev. Stat. 1987; ch. 38, par. 1005 — 8—1(a)(1).


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL BEASLEY, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—3095
    Opinion filed November 16, 1990.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and McCollough, Campbell & Lane, both of Chicago (David E. Schroeder, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Karlene Behringer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Terrell Beasley, appeals from his convictions for murder and two counts of attempted murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 8—4, 9—1(a)(1).) We address the following three issues: (1) whether the trial judge’s denial of defendant’s motion to suppress his statement was manifestly erroneous; (2) whether defendant was denied equal protection when he was tried as an adult; and (3) whether the trial judge properly sentenced defendant as an adult. We affirm defendant’s convictions.

Defendant, who was 16 years old, was arrested in his home on March 3, 1985, for a shooting that occurred in a photography studio on March 2, 1985. One person was killed and two were injured. After his arrest, defendant gave a statement to police, and prior to trial he moved to suppress it based on his warrantless arrest. At the hearing on defendant’s motion, the following evidence was presented.

During the investigation of the shooting, police obtained the physical description of one of the men involved and learned his nickname was Porky. Based on information that defendant was Porky, six police officers in plain clothes went to defendant’s house at 2:30 a.m., on March 3, 1985, without an arrest warrant. Four officers went to the front door and the remaining two officers guarded the back door. The four officers who went to the front door testified at the hearing on defendant’s motion to suppress.

Detective Bogucki and his partner, Detective Raymond Schalk, testified that defendant’s mother answered the door and allowed the officers to enter the house. The officers stayed in the front room while defendant’s mother woke up defendant. He fit the description of the man they were looking for, and he admitted his nickname was Porky. Defendant was arrested and taken to the police station.

Officer William Wagner and his partner, Officer Joe Rodriguez, however, testified that a young woman answered the door and said she would wake up defendant’s mother. The woman allowed the officers to enter the house. Rodriguez testified that the woman told them to wait in the living room while she woke up defendant’s mother. After defendant’s mother spoke with the officers, they followed her to a bedroom where she woke up defendant. Defendant confirmed his nickname was Porky, and the officers took defendant to the police station. Wagner also testified that they did not believe defendant was armed.

Ms. Kimberly Knight, a 19-year-old woman who was a friend of defendant’s family, testified that she answered the door for the police officers. Knight told them to wait at the door while she woke up defendant’s mother but she did not give them permission to enter. After Knight left to wake up defendant’s mother, the officers entered the house. She told them that they could not come in and asked them to wait outside. An officer told her to “shut up” and went to the bedroom. At that time, defendant’s mother came out of another bedroom and told the police to leave. The officers woke up defendant and told him they wanted to take him to the station for questioning.

Ms. Carolyn Figures, a 23-year-old woman who was also a friend of defendant’s family, testified that Knight answered the door. When Knight left to wake up defendant’s mother, Figures went to the door and spoke with the police. Figures testified that she did not give the officers permission to enter; however, when she walked away from the door, the officers entered the house. Defendant’s mother came out of her bedroom and told the officers to get out. The officers took defendant to the police station.

Mrs. Christine Beasley, defendant’s 37-year-old mother, testified that she was sleeping and woke up when she heard Knight scream, “ ‘Stay out.’ ” She came out of her bedroom and saw the police officers inside the house. She told them to get out. She denied that she answered the door and allowed the police to enter. She testified that neither Knight nor Figures lived at the house.

The trial judge found that the police had probable cause to arrest defendant and exigent circumstances justified the officers’ warrant-less entry into defendant’s house. Alternatively, the judge found that Knight, with apparent authority, consented to the officers’ entry He believed Detectives Bogucki and Schalk were mistaken as to the identity of the person who answered the door but each of the police officers’ testimony supported the conclusion that they were given consent to enter. As a result, defendant’s motion to suppress was denied.

In a jury trial, the State presented evidence that on March 2, 1985, at approximately 4:15 p.m., a man wearing a ski mask entered a photography studio on North Avenue and fired several shots at a group of people. Another man was behind him. Carlos Romero, a 13-year-old boy, was killed, and Ramon and Jamie Bucio were injured.

Tommy Hernandez testified that in the afternoon of March 2, he was in the alley behind his house and saw defendant, whom he knew as Porky, and another man, whom he knew as Keto, walking toward North Avenue. Both Porky and Keto were members of a gang. Shortly thereafter, he heard gunshots and saw defendant and another person wearing a ski mask running down the alley. The person wearing the ski mask was wearing the same clothes Keto had on earlier.

Officer Schalk testified that on March 3 at 5:30 p.m., after defendant was arrested, taken to the police station, and given Miranda warnings, he gave a statement. Defendant told police that his nickname was Porky and he and Keto were members of a gang. On the day of the shooting, Keto said they were going to “burn” some members of a rival gang. They went to the photography studio, and Keto kicked the door open and started shooting. Defendant was behind him. Afterward, defendant and Keto ran away.

The State rested its case against defendant.

Defendant presented one witness, Rosie Valldeperes, who was present at the photography studio at the time of the shooting and testified that she did not see anyone behind the gunman.

The jury found defendant guilty of one count of murder and two counts of attempted murder. Defendant filed a motion for new trial which was denied.

At the sentencing hearing, defendant presented two witnesses in mitigation, a counsellor and a teacher from his high school. The witnesses testified that defendant was in classes for “educationable mentally handicapped” students which meant he was functioning at lower than average mental capability. Defendant was sentenced to concurrent prison terms of 30 years for murder and 25 years for each count of attempted murder.

Subsequently, defendant filed a supplemental motion for new trial and for reconsideration of sentence. Defendant argued he was entitled to a new trial based on new evidence discovered during the sentencing hearing that defendant was an educable, mentally handicapped student. Defendant presented a psychologist, Alan K. Rosenwald, who testified that defendant was “borderline mental defective.” Due to defendant’s limited vocabulary development and inability to recognize the words used, Rosenwald had the opinion that defendant had a minimal understanding of Miranda warnings and he was not able to effectively participate in his defense. Defendant also argued that his sentence was excessive. The trial judge denied the motion and defendant filed a notice of appeal.

Opinion

Initially, we consider whether the trial judge’s denial of defendant’s motion to suppress evidence was erroneous. The trial judge found that although the police did not have a warrant, either exigent circumstances or consent justified their entry into defendant’s home to arrest him. As a result of the ruling, the statement defendant gave at the police station was admitted in evidence at trial. The trial court’s ruling on a motion to suppress will not be disturbed unless it was clearly erroneous. People v. Foskey (1990), 136 Ill. 2d 66, 554 N.E.2d 192.

Assuming for the purpose of argument that defendant’s warrant-less arrest violated his constitutional rights against unreasonable search and seizure, we must consider the effect of a recent United States Supreme Court opinion on the question of whether defendant’s statement was admissible at trial. In New York v. Harris (1990), 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640, the Supreme Court held that although the police made a warrantless, nonconsensual entry into defendant’s home to arrest him, his statement made outside the home was admissible because the police had probable cause to arrest.

In Harris, the police had probable cause to arrest defendant for murder. Although they did not have a warrant and were not given consent, they entered defendant’s home and arrested him. After he was taken to the police station and read his Miranda rights, defendant signed a written statement which he subsequently moved to suppress. The trial judge denied the motion, and the statement was admitted in evidence at trial. On appeal from his conviction, defendant in Harris argued that the statement should have been suppressed because under the fourth amendment the police were prohibited from entering his home to arrest him if they did not have a warrant or consent to enter, as held in Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639,100 S. Ct. 1371.

The United States Supreme Court in Harris found that although defendant’s arrest violated Payton, his statement at the police station was admissible. The court in Harris stated:

“[W]e decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects *** protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime. * * *
Nothing in the reasoning of [Payton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house.” (Harris, 495 U.S. at 17-18, 109 L. Ed. 2d at 20, 110 S. Ct. at 1643.)

However, a violation of Payton will justify suppressing evidence or statements obtained inside the home. Harris, 495 U.S. 14, 109 L. Ed. 2d 13, 110 S. Ct. 1640.

The Court distinguished Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, where defendant’s statements were suppressed as fruits of the poisonous tree because they had a “sufficiently close relationship” to an arrest without probable cause. (Harris, 495 U.S. at 19, 109 L. Ed. 2d at 21, 110 S. Ct. at 1643; see Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) Conversely, in Harris, defendant was in lawful custody at the time he made the statement because the police had probable cause to arrest. Therefore, his statement given at the police station was not “an exploitation” of the police officers’ illegal entry into his home and was admissible at trial. Harris, 495 U.S. at 19, 109 L. Ed. 2d at 21, 110 S. Ct. at 1644.

In the present case, defendant does not challenge the trial court’s ruling that the police had probable cause to arrest him when they entered his home. Defendant argued that neither exigent circumstances nor consent justified the police officers' entry and, therefore, his statement should have been suppressed. Under Harris, these questions are irrelevant as the statement defendant sought to suppress was not obtained inside his home. Rather, defendant sought to suppress his statement which he gave at the police station after his arrest. Such a statement is admissible under Harris despite a violation of Payton. Therefore, the trial court’s denial of defendant’s motion to suppress was not manifestly erroneous.

Defendant accepts that Harris disposes of his argument that the statement was inadmissible because the police, violated the fourth amendment. Alternatively, defendant urges this court to disregard Harris and grant greater protection under article I, section 6, of the 1970 Illinois Constitution (Ill. Const. 1970, art. I, §6) which, similar to the fourth amendment, prohibits unreasonable searches and seizures.

Defendant argues that the Illinois Supreme Court applied an exclusionary rule in People v. Brocamp (1923), 307 Ill. 448, 138 N.E. 728, before the Federal exclusionary rule was applied to the States in Mapp v. Ohio (1961), 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684. In Brocamp, the court held that evidence obtained in an illegal search of defendant’s home should not have been admitted at trial. Brocamp is consistent with Harris, which stated that an illegal entry into defendant’s home will justify the suppression of evidence obtained in the home. In the present case, however, defendant sought to suppress the statement he gave at the police station.

The Illinois Supreme Court has acknowledged that in the past it has elected to adopt the United States Supreme Court’s construction of the fourth amendment when construing section 6 of article I of the State Constitution, although it is not required to do so. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) The court in Tisler stated:

“After having accepted the pronouncements of the Supreme Court in deciding fourth amendment cases as the appropriate construction of the search and seizure provisions of the Illinois Constitution for so many years, we should not suddenly change course and go our separate way simply to accommodate the desire of the defendant to circumvent what he perceives as a narrowing of his fourth amendment rights ***. Any variance between the Supreme Court’s construction of the provisions of the fourth amendment in the Federal Constitution and similar provisions in the Illinois Constitution must be based on more substantial grounds. We must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution, after which they are patterned.” (Tisler, 103 Ill. 2d at 245, 469 N.E.2d at 157.)

The court noted that the constitutional convention intended to extend the protection of the fourth amendment to include new protections against invasions of privacy and eavesdropping in section 6 of article I. (See also Ill. Ann. Stat., 1970 Const., art. I, §6, Constitutional Commentary, at 317 (Smith-Hurd 1971) (the section expanded upon the individual rights of the previous version of the section and the guarantees of both the fourth and fourteenth amendments).) However, the convention did not intend to “expand the nature of the protection afforded by the fourth amendment.” (Tisler, 103 Ill. 2d at 242, 469 N.E.2d at 155.) As a result, the court in Tisler followed the Supreme Court’s construction of the fourth amendment in construing article I, section 6, of the State Constitution.

A special concurrence and a dissent criticized the majority’s approach. (Tisler, 103 Ill. 2d 226, 469 N.E.2d 147 (Clark, J., specially concurring; Goldenhersh, J., dissenting, joined by Simon, J.).) Justice Clark noted in his special concurrence:

“[T]he majority’s stance on this issue is dangerous because it limits our power to interpret our own State Constitution in the future. ***
Under the majority’s analysis, this court would be precluded from protecting the civil liberties of Illinois citizens should the United States Supreme Court decide to consistently favor police efficiency over the rights of the accused. Although the majority’s reasoning may seem harmless today, it would preclude this court from protecting the individual liberties of Illinois citizens should such protection become essential in the future.” (Tisler, 103 Ill. 2d at 259, 469 N.E.2d at 163-64 (Clark, J., specially concurring).)

Similarly, Justice Goldenhersh noted that the court was not required to “ ‘blindly follow’ ” the United States Supreme Court. Tisler, 103 Ill. 2d at 264, 469 N.E.2d at 166 (Goldenhersh, J., dissenting, joined by Simon, J.), quoting People v. Exline (1983), 98 Ill. 2d 150, 157, 456 N.E.2d 112 (Goldenhersh, J., dissenting).

In resolving the issue of whether we should adopt the reasoning of Harris in construing section 6 of article I of the State Constitution, we must be guided by the majority opinion in Tisler. The court acknowledged that it had the power to break from the Supreme Court’s interpretation of the fourth amendment but declined to “suddenly change course” from its previous decisions which paralleled the Supreme Court without “substantial grounds” to do so. (Tisler, 103 Ill. 2d at 245, 469 N.E.2d at 157.) Accordingly, we believe Harris is applicable to the present case and, as a result, we must reject defendant’s argument that the trial judge erroneously denied his motion to suppress.

Defendant also argues that his equal protection rights were violated when he was tried as an adult under section 2 — 7(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 7(6)(a) (current version at Ill. Rev. Stat. 1989, ch. 37, par. 805 — 4(6)(a))). As an exception to juvenile court jurisdiction, section 2 — 7(6)(a) provides that a minor would be tried as an adult if he was at least 15 years old at the time of the crime and was charged with murder or certain other Class X felonies. In this case, defendant was tried as an adult because he was 16 years old at the time of the crime and he was charged with murder. He contends that he was denied equal protection because he was prosecuted under an accountability theory and because he was “mentally defective.”

This argument was not raised in the trial court. In his motion for new trial, defendant argued that the Juvenile Court Act was only intended to apply to principals but he did not contend that the act violated equal protection. The failure to raise an issue in the trial court can result in a waiver of that issue on appeal (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124); however, plain errors or defects affecting substantial rights may be considered on appeal although they were not raised in the trial court (134 Ill. 2d R. 615(a)). We do not believe that plain error occurred in this case because the supreme court has field that the section does not violate equal protection. People v. M.A. (1988), 124 Ill. 2d 135, 529 N.E.2d 492; People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090.

Lastly, defendant argues that the trial judge erred in sentencing him as an adult. At the time defendant was sentenced on May 22, 1986, section 2—7(6)(c) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702— 7(6)(c) (current version at Ill. Rev. Stat. 1989, ch. 37, par. 805 — 4(6)(c))) provided that if a minor was tried as an adult and convicted of an offense listed in section 2 — 7(6)(a), the trial judge had the option to sentence defendant as an adult under Chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—1—1 et seq.) or as a juvenile under Article 5 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 705—1 et seq.). Defendant argues his sentence should be vacated and remanded for a new sentencing hearing because the judge did not consider the option to sentence defendant as a juvenile.

At the sentencing hearing, defendant’s attorney did not request the trial judge to sentence defendant as a juvenile and instead requested a prison term of 20 years, which was the minimum sentence for murder under section 5—8—1(a)(1)(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(a)). The judge sentenced defendant as an adult to prison terms of 30 years for murder and 25 years for each count of attempted murder, to run concurrently. Although defendant subsequently filed a motion for reconsideration of sentence, he failed to raise this issue.

It cannot be presumed that the trial judge was unaware of the option to sentence defendant as a juvenile. (People v. White (1989), 180 Ill. App. 3d 1032, 536 N.E.2d 812.) Where defendant’s attorney invited the trial judge to sentence defendant as an adult, defendant cannot claim on appeal that the judge abused his discretion in sentencing him as an adult. (People v. Berryman (1988), 171 Ill. App. 3d 548, 526 N.E.2d 180.) Accordingly, there is no basis to vacate defendant’s sentence.

Affirmed.

MURRAY and GORDON, JJ., concur.


text:
    MARINA ASSOCIATES, d/b/a Harrah’s Marina Hotel Casino, Plaintiff-Appellant, v. SYDWIN N. BARTON, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—2802
    Opinion filed November 16, 1990.
    Charles N. Brusso & Associates, of Chicago (Timothy J. O’Donovan, of counsel), for appellant.
    Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lawrence G. Gordon, of counsel), for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff, Marina Associates, appeals from an order of the circuit court of Cook County dismissing its petition for the registration of a foreign judgment in Illinois. For the following reasons, we reverse and remand.

Marina Associates sued defendant, Sydwin N. Barton, to collect for credit which it had extended to Barton, for the purposes of gambling at its casino located in New Jersey. Appellee does not question either the personal or subject matter jurisdiction of the New Jersey court which entered the judgment, nor did appellee repay any part of the debt, nor was the debt ever forgiven, released, or waived. (See Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 385 N.E.2d 702.) On February 26, 1986, the superior court of New Jersey entered a money judgment based on the indebtedness, in the amount of $11,333.44, plus costs, in favor of appellant and against appellee. On February 19, 1988, appellant filed its petition in the circuit court of Cook County seeking to register the New Jersey money judgment as a final Illinois judgment, pursuant to the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 601 et seq.). Appellee resisted the filing of appellant’s foreign judgment in Illinois, successfully arguing before the court that the loan upon which the foreign judgment was predicated was a gambling debt and, accordingly, void under the criminal law of Illinois, as well as being in violation of Illinois public policy. The circuit court judge agreed with the appellee’s argument and entered judgment in his favor and against the appellant upon the authority of the criminal statute. Subsequently, appellant sought relief in this court.

The Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 1—1 et seq.) states as follows:

“Gambling contracts void, (a) All promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn, or entered into, or executed by any person whatsoever, where the whole or any part of the consideration thereof is for any money or thing of value, won or obtained in violation of any Section of this Article are null and void.
(b) Any obligation void under this Section may be set aside and vacated by any court of competent jurisdiction, upon a complaint filed for that purpose, by the person so granting, giving, entering into, or executing the same, or by his executors or administrators, or by any creditor, heir, legatee, purchaser or other person interested therein; or if a judgment, the same may be set aside on motion of any person stated above, on due notice thereof given.
(c) No assignment of any obligation void under this Section may in any manner affect the defense of the person giving, granting, drawing, entering into or executing such obligation, or the remedies of any person interested therein.” (Ill. Rev. Stat. 1987, ch. 38, par. 28-7.)

The sole question to be decided is to what extent an Illinois trial court may refuse enforcement of a valid judgment of a sister State because the judgment seeks to enforce a gambling debt, valid where rendered, but contrary to the statutes and public policy of Illinois.

It is our view that the circuit court’s ruling finds no support in the decided cases. The court’s language in Employers’ Liability Assurance Corp. v. Coronet Insurance Co. (1969), 106 Ill. App. 2d 24, 30-31, 245 N.E.2d 629, 632, could not have been more clear:

“The initial filing in the case before us, and the proceeding following such filing, was in Louisiana. When plaintiff Employers’ came to Illinois they already had a judgment against Coronet, and the action in Illinois was not a direct action against Coronet under the direct action statute of Louisiana, but was a proceeding on a Louisiana judgment in Illinois. The original action in Louisiana merged into or became part of. the Louisiana judgment, and when the judgment came before the court in Illinois [which prohibited the filing of a direct action against an insurance company], it had the character of a Louisiana money judgment and was not a direct action in Illinois as against defendant insurance company. *** [W]e believe that for the purposes of an action on a foreign judgment in Illinois the court will not look behind the judgment itself to examine the nature of the cause of action.”

The Employers’ court went on to hold:

“It is apparent, therefore, that the public policy of the State of Illinois as expressed in the statute and as applied in the case before us, is not to be considered when a party proceeds in Illinois to register a judgment obtained in a foreign State.” 106 Ill. App. 2d at 34, 245 N.E.2d at 634.

Plaintiff’s petition to the circuit court did not invoke the issue of judicial comity, nor was the circuit court petitioned to register plaintiff’s New Jersey judgment in Illinois out of deference or respect to the laws of New Jersey, but, rather, plaintiff sought to register the New Jersey judgment under the authority of the full faith and credit clause of the United States Constitution. The full faith and credit clause provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (U.S. Const., art. IV, §1.)

The circuit court, accordingly, was compelled to register plaintiff’s New Jersey money judgment in Illinois as a final judgment under this constitutional mandate.

• As Justice Schaefer stated, the full faith and credit clause represents a constitutional embodiment of the Federal policy that, unless judgments receive interstate recognition:

“[T]he insulated judicial systems of the several States may become sanctuaries within which obligations that have been fully and fairly adjudicated in another jurisdiction may be escaped.” Light v. Light (1957), 12 Ill. 2d 502, 510, 147 N.E.2d 34, 39.

The United States Supreme Court has consistently ruled that the full faith and credit clause requires a State court to give the judgment of a sister State the same faith, credit, conclusive effect, and obligatory force as the judgment has by law or usage in the State from which it was taken. See Christmas v. Russell (1866), 72 U.S. (5 Wall.) 290, 18 L. Ed. 475; Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co. (1917), 243 U.S. 93, 61 L. Ed. 610, 37 S. Ct. 344.

The Supreme Court resolved the issues raised by plaintiff’s petition more than 80 years ago, when the Court invoked the full faith and credit clause to require a State court to recognize and enforce a judgment of a sister State even though the judgment was based upon an original cause of action which was illegal in the State in which the enforcement was sought, in that it was a transaction involving gambling. (See Fauntleroy v. Lum (1908), 210 U.S. 230, 52 L. Ed. 1039, 28 S. Ct. 641.) That case sets forth the law that stands today.

In Fauntleroy, the plaintiff and the defendant had entered into a transaction in the State of Mississippi. The transaction involved trading on cotton futures, which was deemed to be a gambling transaction under the Mississippi law and, consequently, illegal and unenforceable under it. The plaintiff brought a civil action on the transaction, not in the trial court of Mississippi, where the action was sure to be defeated as a matter of law, but rather in the trial courts of Missouri, where the transaction was legal and enforceable.

The Missouri trial court entered a judgment in plaintiff’s favor, whereupon the plaintiff brought an action in Mississippi to enforce the Missouri judgment. The defendant moved to dismiss those proceedings, arguing that the Mississippi court should not enforce the Missouri judgment due to the illegal nature of the transaction under Mississippi law. The Mississippi court agreed and refused to recognize and enforce the Missouri judgment in Mississippi.

On appeal, the Supreme Court reversed, ruling that the full faith and credit clause required the Mississippi court to recognize and enforce the Missouri judgment, notwithstanding Mississippi law or public policy to the contrary. Fauntleroy is directly on point, is still the law of land, and is controlling.

Justice Holmes, in reversing the Mississippi court’s judgment, reasoned:

“Whether the award would or would not have been conclusive, and whether the ruling of the Missouri court upon that matter was right or wrong, there can be no question that the judgment was conclusive in Missouri on the validity of the cause of action.” (Fauntleroy, 210 U.S. at 237, 52 L. Ed. at 1042, 28 S. Ct. at 643.)

Our own research has provided us with additional support for our conclusion.

In Titus v. Wallick (1939), 306 U.S. 282, 291, 83 L. Ed. 653, 659, 59 S. Ct. 557, 562, the Court followed Fauntleroy, in stating:

“It is the judgment and not the cause of action which gave rise to it for which credit is claimed, and the constitutional mandate requires credit to be given to a money judgment rendered on a civil cause of action in another state, even though the forum would have been under no duty to entertain the suit on which the judgment was founded.”

Morris v. Jones (1947), 329 U.S. 545, 91 L. Ed. 488, 67 S. Ct. 451, further clarifies the issue. The Supreme Court stated:

“The function of the Full Faith and Credit Clause is to resolve controversies where state policies differ. Its need might not be so greatly felt in situations where there was no clash of interests between the States. The argument of convenience in administration is at best only another illustration of how the enforcement of a judgment of one State in another State may run counter to the latter’s policies. But the answer given by Fauntleroy v. Lum, supra, is conclusive. If full faith and credit is not given in that situation, the Clause and the statute fail where their need is the greatest.” Morris, 329 U.S. at 553, 91 L. Ed. at 497, 67 S. Ct. at 457.

In Harrah’s Club v. Mijalis (La. Ct. App. 1990), 557 So.2d 1142, 1145, the court observed:

“Other states with public policy prohibitions against gambling have given full faith and credit to judgments for gambling debts when the judgments were validly obtained and enforceable elsewhere.”

See also M & R Investments Co. v. Hacker (Fla. Dist. Ct. App. 1987), 511 So.2d 1099; GNLV Corp. v. Jackson (Tex. Ct. App. 1987), 736. S.W.2d 893; Hargreaves v. Greate Bay Hotel & Casino (1987), 182 Ga. App. 852, 357 S.E.2d 305.

We note in closing that the American Law Institute has codified the holding of Fauntleroy in its Restatement (Second) of Conflict of Laws §117 (1971), which states:

“Original Claim Contrary to Public Policy of State Where Enforcement of Judgment is Sought
A valid judgment rendered in one State of the United States will be recognized and enforced in a sister State even though the strong public policy of the latter State would have precluded recovery in its courts on the original claim.”

Section 117’s comment b provides:

“Situation in the United States. As between States of the United States, the rule of this Section is one of constitutional law. Provided that the judgment is valid ***, full faith and credit requires that it be recognized and enforced in a sister State even though the original claim is contrary to the strong public policy of the sister State. Fauntleroy v. Lum, 210 U.S. 230 (1908). This is a situation where no departure from the command of full faith and credit is permitted ***.” (Emphasis in original.) Restatement (Second) of Conflict of Laws §117, comment b, at 339-40 (1971).

With these long-settled principles in mind, we reverse the judgment of the circuit court and remand the proceedings to that court with instructions to enter a final judgment in plaintiff’s favor and against defendant.

Reversed and remanded with directions.

LORENZ and MURRAY, JJ., concur.

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