author: JUSTICE CAMPBELL

text:
    M G D, INC., f/k/a Dalen Trading Company, et al., Plaintiffs-Appellants, v. DALEN TRADING COMPANY, f/k/a SP ACQ, Inc., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—90—1413
    Opinion filed June 8,1992.

      Hayes & Power, of Chicago (Joseph A. Power, Jr., Paul L. Salzetta, and David A. Novoselsky, of counsel), for appellants.
    Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This appeal arises from an action brought by plaintiffs, MGD, Inc. (MGD), formerly known as Dalen Trading Company (DTC-Blinois), and Mark Dalen (Dalen) against defendants Peter R. Harvey (Harvey) and The Vader Group, Inc. (Vader), for tortious interference with contractual relations. The trial court dismissed counts VII, VIII and IX of plaintiffs’ second amended complaint pursuant to section 2 — 619(aX9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX9)) for failure to state a cause of action. We affirm.

The following facts are relevant to this appeal. Vader, formerly known as Magic Silk, Inc. (Magic Silk), is a New York corporation authorized to do business in Illinois. Harvey is the owner and chief executive officer of Vader. Prior to December 30, 1987, Magic Silk was a vendor and supplier of goods to plaintiffs. Ozite Corporation (Ozite) is a Texas corporation, and SP ACQ, Inc. (SP ACQ), a Delaware corporation now known as Dalen Trading Company (DTC-Delaware), is a wholly owned subsidiary of Ozite. Silk Plants Etc. Franchise Systems, Inc. (Silk Plants), an Illinois corporation and a wholly owned subsidiary of DTC-Delaware is engaged in the business of wholesaling, purchasing, importing, selling and distributing silk plants, silk flowers, plant foliage and trees and franchising operations.

On January 7, 1987, Dalen, DTC-Illinois and Silk Plants, as sellers, entered into a “Stock Asset and Purchase Agreement” with SP ACQ and Ozite as purchasers. Pursuant to the agreement, Dalen, DTC-Hlinois and SP ACQ agreed to sell all assets of DTC-Illinois and all outside shares of stock of SP ACQ owned by Dalen. SP ACQ agreed to pay DTC-Illinois and Dalen $5 million; $1 million at closing and the balance in four installments of $1 million, as evidenced by four promissory notes. In addition, Dalen entered into a “Consultant and Non-Competition Agreement” with SP ACQ, under which Dalen promised to provide his services as a consultant for a period of five years, at an annual salary of $250,000 and additional “earnout” compensation.

On January 8, 1987, MGD and Dalen entered into a “Security Agreement” as secured parties with SP ACQ and Silk Plants to secure payment and performance of the “Promissory Notes and Consulting Agreement.” In addition, Ozite entered into a subordinated pledge agreement with Dalen and MGD, whereby Ozite pledged 100% of shares of capital stock of SP ACQ to secure the performance and payments of the promissory notes and consulting agreement and other obligations. On that same date, SP ACQ entered into a similar “Subordinated Pledge Agreement” with MGD and Dalen, pledging 100% of the shares of capital stock of Silk Plants.

Between January and November 1987, Harvey sold the assets of Magic Silk and changed the name to Vader. After the sale, Harvey asked Dalen what amount he would require to be bought out of the stock asset and purchase agreement and the consulting and noncom-petition agreement. Dalen requested $7 million.

On December 1, 1987, the chief executive officer of Silk Plants informed Dalen that Silk Plants was losing money and that Harvey wanted Dalen to be a financial but not actual participant or consultant in a new ownership of Silk Plants and DTC-Delaware. Dalen rejected Harvey’s offer. On December 17, 1987, defendants Ozite and DTC-Delaware (SP ACQ) announced their intention by letter to MGD and Dalen to breach the stock asset and purchase agreement.

MGD and Dalen’s first amended complaint, filed June 7, 1989, alleged tortious interference with contracts in counts VII, VIII and IX. Harvey moved to dismiss counts VII, VIII and IX under section 2— 619(aX9) asserting that his actions were protected by a qualified privilege. The trial court granted Harvey’s motion and granted plaintiffs leave to file amended counts VII, VIII and IX.

On December 20, 1989, plaintiffs filed their second amended complaint. In count VII MGD and Dalen allege that: (1) Harvey knew of the above agreements and that he “intentionally interfered with the contractual relationship” between plaintiffs and Ozite, DTC-Delaware and Silk Plants by appropriating revenues and funds from the assets of SP ACQ and Silk Plants and diverting funds to Magic Silk; (2) Harvey “intentionally and knowingly without reasonable justification” induced SP ACQ, Silk Plants and Ozite to breach their contractual obligations with MGD and Dalen; and (3) as a direct and proximate result of defendants’ intentional interference, MGD and Dalen sustained over $4 million in damages. In counts VIII and IX plaintiffs allege the same facts, requesting punitive relief of $10 million, and an unspecified judgment for $10 million, respectively.

Harvey moved to dismiss plaintiffs’ second amended complaint asserting, as previously, that pursuant to section 2 — 619(aX9) of the Code of Civil Procedure, plaintiffs’ claim was barred by a qualified privilege. In addition, Harvey’s motion incorporated his own affidavit and the transcript of the proceedings of the November 8, 1989, hearing on his previous motion to dismiss. In his affidavit, Harvey stated that he is on the board of directors of both Silk Plants and DTC-Delaware (SP ACQ), and is chairman of the board of directors, president and a major shareholder of Vader. Following a hearing, the trial court dismissed counts VII, VIII and IX on the ground that plaintiffs failed to adequately allege Harvey’s intent to interfere with plaintiffs’ contractual relationships. Plaintiffs’ timely appeal followed.

On appeal, plaintiffs contend that the trial court erred in dismissing counts VII, VIII and IX of their second amended complaint for failure to state a cause of action for tortious interference with contract. Where the issue before the reviewing court is whether the trial court properly dismissed a complaint, all well-pleaded facts and all reasonable inferences that could be drawn from those facts are construed as true and correct. (Philip I. Mappa Interests, Ltd. v. Kendle (1990), 196 Ill. App. 3d 703, 554 N.E.2d 1008.) Although pleadings are to be construed liberally, plaintiff remains obligated to plead facts necessary for recovery. Liberal construction cannot cure a complaint which lacks sufficient factual averments. A complaint fails to state a cause of action if it does not contain factual allegations in support of every element of the particular cause of action. Mappa, 196 Ill. App. 3d at 708.

It is generally recognized in Illinois that the elements of the tort of intentional interference with existing contract rights are “(1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages.” H P I Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 154-55, 545 N.E.2d 672.

A qualified privilege bars liability for tortious interference. (Mittelman v. Witous (1989), 135 Ill. 2d 220, 249, 552 N.E.2d 973, 987.) Illinois courts recognize a privilege for corporate officers and directors to use their business judgment and discretion on behalf of their corporations. (H P I, 131 Ill. 2d at 157.) The duty of corporate officers and directors to their corporations’ shareholders outweighs any duty they may have towards parties contracting with the corporation. H P I, 131 Ill. 2d at 157, quoting Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921; Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 561 N.E.2d 1134.

In the present case, Harvey is on the board of directors of both Silk Plants and DTC-Delaware (SP ACQ) and is chairman of the board of directors, president and a major shareholder of Vader. Harvey has a duty to the shareholders of these corporations to exercise business judgment in managing their affairs. Therefore, Harvey’s conduct in this case was privileged.

To overcome the qualified privilege of a corporate officer, a plaintiff must show that the corporate officer’s action was done without justification or with actual malice. (Mittelman, 135 Ill. 2d at 249.) “Actual malice” is a positive desire or intent to injure another, and in the context of a charge of tortious interference with a contractual relationship, the plaintiff must show that the desire to harm was unrelated to the interests of the corporation. (See Chapman v. Crown Glass Corp. (1990), 197 Ill. App. 3d 995, 557 N.E.2d 256; Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 515 N.E.2d 1047.) Bare allegations of actual malice, unsupported by facts, are not sufficient to negate the protections of privilege or unjustified conduct. Genelco, Inc. v. Bowers (1989), 181 Ill. App. 3d 1, 7, 536 N.E.2d 783.

Plaintiffs rely on Mittelman to support the contention that the allegations in their second amended complaint are sufficient to overcome a qualified privilege. However, Mittelman is distinguishable on the facts. In Mittelman, the plaintiff’s allegations of actual malice were supported by specific and definite factual allegations, which included details of specific actions taken by the plaintiff, and reported to the defendants, to establish that Witous’ allegedly slanderous remarks were false and that the defendants knew them to be false. By contrast, plaintiffs’ allegations here made no reference to any specific actions by Harvey supporting the allegations of actual malice.

Plaintiffs’ further reliance on General Capital Corp. v. United States Family Sporting Goods, Ine. (N.D. Ill. 1972), 351 F. Supp. 364, is unavailing. General Capital stands for the proposition that intentional and malicious interference may be found where an individual misappropriates corporate assets for his own personal use, in breach of his fiduciary responsibility to the corporation. General Capital, 351 F. Supp. at 368, citing Winger v. Chicago City Bank & Trust Co. (1946), 394 Ill. 94, 67 N.E.2d 265.

In the present case, plaintiffs have not alleged that Harvey appropriated any funds from his companies for his own personal use. Counts VII, VIII and IX of plaintiffs’ second amended complaint merely allege that Harvey was aware of the contracts between plaintiffs and the various companies; that assets were transferred from SP ACQ and Silk Plants to Magic Silk; that Harvey caused the contracts between plaintiffs and the companies to be breached “without reasonable justification”; and that as a result, plaintiffs suffered damages. There are no allegations that Harvey’s actions were illegal, motivated by a desire for personal gain, or intended harm to plaintiffs, as required to prove actual malice.

The trial court found that the allegations of plaintiffs’ second amended complaint simply indicated that Harvey’s action affected the financial integrity of the corporation, not an intention to induce a breach of a particular contract. Plaintiffs have not shown that Harvey’s actions were totally unrelated to the interest of the corporations or unjustified. Thus, the allegations are merely conclusory statements, without supporting facts. As such, plaintiffs’ allegations are insufficient to overcome Harvey’s qualified privilege and state a cause of action for intentional interference with contractual rights. See H P I,131 Ill. 2d at 159.

Accordingly, we affirm the trial court’s order dismissing counts VII, VIII and IX of plaintiffs’ second amended complaint for failure to state a cause of action for tortious interference with contractual relations.

Affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      Counts I through VI of plaintiffs’ second amended complaint, directed against DTC-Delaware and Ozite, are not involved in this appeal.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PATTEN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—1593
    Opinion filed June 9,1992.

      Randolph N. Stone, Public Defender, of Chicago (Murray Coffey and Karen Tietz, Assistant Public Defenders, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janet Ma-honey, and Theresa Harney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, William Patten, convicted by a jury on two counts of child abduction (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10) (section 10 — 5(b)(10))), appeals, questioning whether (1) a jury instruction created a mandatory presumption, denying him due process; (2) the exclusion of expert testimony denied him the right to prepare a defense; (3) the court erred in admitting evidence of another crime; (4) the child abduction statute provides disproportionate penalties and is violative of due process; and (5) defendant was denied effective assistance of counsel. For reasons which follow, we affirm.

The following facts were adduced at trial. B.M., a 10-year-old male, testified that on May 27, 1990, at 2:40 p.m., he was talking with E.L., a 10-year-old female, on the corner of 114th and Whipple Avenue, near B.M.’s home in Merrionette Park, Illinois. He observed a red Mustang move down Whipple Avenue, turn into the wrong lane and stop. The driver’s side of the car was next to the curb. The car stopped near the children. The driver, who B.M. later identified in court as defendant, and who B.M. had seen driving on other occasions, exited the automobile and stood approximately five feet from them. The driver’s door remained open as defendant extended his arms out and open in a motion toward the children. Defendant’s hands almost touched B.M. Defendant said to both children, “[c]ome here I want to give you a kiss.” The children ran to B.M.’s home and informed B.M.’s mother that “[t]he guy in the red car stopped us and said come here, I want to give you a kiss and he tried grabbing for us.”

Minutes later, B.M., his mother and E.L. stopped a policeman and informed him of what happened. The officer showed B.M. pictures, from which he identified defendant. B.M. asserted that defendant did not offer the children candy or a ride or try to get E.L. into the car. On June 4, B.M. picked defendant out of a lineup.

B.M.’s mother testified that on May 27, 1990, B.M. ran into the house with E.L., excited, scared and nervous. He asserted that a man pulled up next to him, reached out for him, and asked for a kiss. Upon the mother’s request, B.M. flagged down a Merrionette Park police officer. She did not give defendant permission to take B.M. into his car.

E.L.’s testimony tracked that of B.M. and his mother. She identified defendant in court as the man involved in the incident. On May 31, under questioning by a detective, she described defendant and the car, and identified him from a six-picture display. On June 4, she picked defendant out of a lineup. She further asserted that defendant once chased her as she was on her way to cheerleading practice.

E.L.’s mother testified that she never gave defendant permission to put E.L. in his car on May 27. E.L. once told her she was followed on the way to cheerleading practice, but not by whom. E.L.’s mother called the police one month prior to the incident, when she saw defendant drive by while continuously looking at the children.

Merrionette Park police Sgt. Robert Olszowka stated that on May 27, he was flagged down by B.M., who was excited and frightened. His eyes were staring straight ahead, and his hands were moving. He was talking fast and breathing heavily. After speaking with him, the officer related the incident to his dispatcher. When Merrionette Park Detective Dan Waliczek arrived, they searched the immediate and adjoining areas for the vehicle, including part of Chicago.

Detective Waliczek testified that he was dispatched to the scene, where he spoke with Sgt. Olszowka. He unsuccessfully searched the area for defendant and the vehicle. On May 31, he went to E.L.’s house and showed her a photograph spread of six white individuals. She identified defendant as the one who tried to grab her. Subsequently, he went to B.M.’s home, where, from the same picture selection, B.M. identified defendant as the offender.

At about 11:00 a.m. on June 4, Detective Waliczek went to defendant’s home in Chicago, V-k miles from the incident. Defendant was arrested and transported to the Merrionette Park police station. Defendant’s attorney, his parents, and B.M.’s and E.L.’s parents were notified. A lineup was conducted, where both B.M. and E.L., at separate times, identified defendant as the offender. Detective Waliczek made an in-court identification of defendant as the one chosen at the lineup.

Detective Waliczek additionally asserted that defendant owned a 1988 red Mustang “hatchback,” which was found outside his home upon arrest. B.M. and E.L. did not tell the detective that defendant directed them into the car or touched them. He concluded that defendant tried to drag them into the car, which was not asserted by the minors. Both children knew defendant from the “ball field.”

K.H., an 11-year-old female, P.H., a nine-year-old male, and Chicago police detective James Butler testified for the limited purposes of identification, presence, and modus operandi.

K.H. and P.H. asserted that on September 26, 1990, at 7 p.m., they were playing in front of P.H.’s house on the far southwest side of Chicago, with the latter’s 13-year-old cousin, who was baby-sitting, and P.H.’s younger sister. She was playing near the curb. When the baby sitter went inside to answer the telephone, defendant drove past the house, stopped at a stop sign and drove in reverse back to the house, into the curb where the sister was playing. Defendant waived to them and said “come here.” K.H. only heard “come.”

P.H. and his sister ran into the house. The baby sitter called the police. Subsequently, K.H. identified defendant in a photograph display and at a lineup. Both K.H. and P.H. identified defendant’s car at the police station. Detective Butler identified defendant in court as the individual involved in the Chicago incident.

Neither of the minors knew B.M. or E.L. The same was true for B.M.’s and E.L.’s knowledge of these two minors.

Defendant’s motion for a finding at the close of the State’s case was denied.

Defendant’s answer to the State’s request for pretrial discovery listed alibi as his defense, with his father, mother and brother as witnesses; however, when defendant called Raymond Patten, Rita Patten and Lawrence Patten, his father, mother and brother, respectively, they testified only that defendant worked for 20 years at North American Cab Company, which he left when it closed, and had served in the armed forces. Defendant owned a red Mustang.

Defendant rested and was found guilty as previously mentioned. His motions for judgment notwithstanding the verdict, for a new trial and for arrest of judgment were denied. During his sentencing hearing, in which extensive testimony was presented, defendant denied having been involved in the incidents involving any of the children who testified. He was sentenced to three years in custody of the Department of Corrections. He appeals.

I

Defendant asserts that the child abduction instruction given to the jury created a mandatory presumption, which denied defendant due process.

The applicable statute provides that a person commits child abduction when he or she “[ijntentionally lures or attempts to lure a child under the age of 16 into a motor vehicle *** without the consent of

the parent or lawful custodian of the child for other than a lawful purpose.” (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(10) (section 10— 5(bX10)).) Over defendant’s objection the jury was given a nonpattem instruction which stated that: “If you find that at the time the defendant lured or attempted to lure a child under the age of sixteen years old into a motor vehicle and he did so without the consent of a parent or lawful custodian of the child, you may infer it was for other than a lawful purpose.” The instruction purportedly was authorized by section 10 — 5(bX10) language to the effect that the above-described actions constitute prima facie evidence of “other than a lawful purpose,” and by People v. Embry (1988), 177 Ill. App. 3d 96, 531 N.E.2d 1130 (Embry), People v. Hester (1989), 131 Ill. 2d 91, 544 N.E.2d 797 (Hester), and People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151 (Housby).

Defendant urges that this instruction violated due process by creating a mandatory presumption, which caused the jurors to assume that there was no choice but to make the instructed presumption, relieving them of their duty to find the ultimate facts of defendant’s guilt beyond a reasonable doubt, based on evidence adduced by the State (People v. Joyce (1991), 210 Ill. App. 3d 1059, 1069, 569 N.E.2d 1189). (See People v. Hester (1989), 131 Ill. 2d 91, 544 N.E.2d 797.) Defendant maintains that a further instruction, informing the jurors that the presumption was rebuttable by the evidence, should have been given.

A permissive inference allows — but does not require — the trier of fact to infer from the evidence one or more factual deductions or conclusions. (See Embry, 177 Ill. App. 3d at 100; People v. Cisel (1982), 110 Ill. App. 3d 1070, 1072, 443 N.E.2d 734.) The words “you may infer,” contained in the subject instruction, create a permissive inference (Housby, 84 Ill. 2d at 433), which the jury was free to accept or reject, placing no burden on defendant (Hester, 131 Ill. 2d at 99-100). The supreme court has held that the words “you may infer” alone adequately inform a jury that the inference is permissive and it is free to reject it in judging defendant’s guilt. (Housby, 84 Ill. 2d at 433; see People v. Marcotte (1991), 217 Ill. App. 3d 797, 577 N.E.2d 799.) Furthermore, as in Housby, in addition to the “you may infer” language, the jury also was instructed that defendant is presumed innocent at every stage, which is not overcome unless from all the evidence it is convinced beyond a reasonable doubt that defendant is guilty; and that the burden remains with the State throughout the case. This combination of instructions further informed the jury of its option to disregard the presumption. Housby, 84 Ill. 2d at 434.

The jury was not mandated to accept the presumption, nor did the instruction have the effect of shifting the burden of persuasion. There was no error.

II

Defendant urges that the court’s exclusion of testimony by a defense expert inhibited his ability to present a defense. The expert testimony, he insists, would have been relevant to the rebuttable presumption of defendant’s mental state, namely, whether he was acting for a lawful purpose. Without this testimony, defendant claims, he was forced to rely on attestations from family members as his defense. The State successfully moved to exclude this testimony.

Defense counsel informed the court, during the State’s motion in limine, that the expert’s testimony would encompass an 18-month examination of defendant. The expert observed defendant’s hospital records, and interviewed defendant as well as his mother, father and brother. The expert would assert that defendant was not a child molester, pedophiliac or homosexual. He would testify as to what caused defendant to act “not quite normal,” but do nothing criminal. One report regarding defendant indicates that he had a schizotypal personality disorder which is exemplified by oddities in behavior. (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 340-41 (3d ed. rev. 1987).) This evidence, defendant asserts, could have explained to the jury that defendant did not act with unlawful purpose, but had a personality disorder.

The circuit court found no factual basis for the defense expert to testify. Of concern to the court was that the expert’s statements regarding defendant’s lack of homosexual and pedophiliac tendencies would confuse the jury by allowing it to believe that if the State did not prove homosexuality or pedophilia, defendant could not be found guilty.

The denial or granting of a motion in limine will be reversed only if the circuit court manifestly exceeded its discretion. (People v. Salazar (1991), 211 Ill. App. 3d 899, 910, 570 N.E.2d 802.) The excluded testimony was irrelevant, since it would not have aided in the establishment of the purpose of defendant’s actions. There was no evidence that the defense expert would have testified to any lawful purpose defendant had in mind when he attempted to lure the children. The question at issue was whether defendant committed child abduction, which could have been decided by the jury without expert assistance. (People v. Perry (1986), 147 Ill. App. 3d 272, 275, 498 N.E.2d 1167.) Also, defendant, in his pretrial discovery answer, denied he was present at the incident. Therefore, the expert’s testimony would have been irrelevant to the alibi defense. Further, the testimony would have given the jury the misimpression that the purpose of abduction must be sexual or that the State must prove what the purpose was. No sexual purpose is required by the statute. Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(bX10).

From the foregoing it is clear that the circuit court did not abuse its discretion in refusing the proffered expert testimony for jury consideration.

Ill

Defendant next avers that evidence of defendant’s other crime was impermissible because no modus operandi was shown; no identification problem existed; and the court failed to exercise any discretion regarding admissibility.

The prosecution presented evidence of another crime, that involving K.H., RH. and Detective Butler. The asserted need for this evidence was to establish modus operandi, identity and to challenge defendant’s alibi. After counsel described the similarities between the present case and the other, the court allowed the testimony.

Defendant argues that the similarities between the instant case and the other crime were insufficient to sustain its admission for modus operandi. Dissimilarities identified by the defense include the fact that the present case occurred outside of Chicago, but the other occurrence took place within the city; the incidents occurred four months apart; only in the instant case did defendant exit his vehicle; and in the present incident defendant asked for a kiss, but in the other crime he stated “come here.” Apparent similarities, however, included the use of a small red car; the identification of the red car by all four minors involved; the objects of the offenses were children in pairs; the children were of similar age; the victims lived a few blocks apart in relatively the same neighborhood; no adults were present in either case; the offender gestured in close proximity to the car; both incidents were daytime occurrences; and defendant was identified by three of the four minors.

The decision to admit evidence of other crimes is within the sound discretion of the circuit court, and its determination will not be disturbed absent an abuse of discretion. (People v. Willis (1989), 184 Ill. App. 3d 1033, 1040, 540 N.E.2d 1080.) To show modus operandi there must be distinctive features that are not common to most offenses of that type; however, not all features need to be distinct. (People v. Tate (1981), 87 Ill. 2d 134, 142-43, 429 N.E.2d 470.) Geographic proximity of the offenses, similarity in execution and the description of the accused are factors relevant to showing similarity. (Willis, 184 Ill. App. 3d at 1041; People v. Anderson (1982), 108 Ill. App. 3d 563, 570, 439 N.E.2d 65; People v. Therriault (1976), 42 Ill. App. 3d 876, 886, 356 N.E.2d 999.) The similarities here demonstrate that the circuit court appropriately exercised its discretion in allowing evidence of the other crime to be considered by the jury here.

Defendant asserts that proof of identity was already established to such a degree by the witnesses that evidence of the other crime was unnecessary to show identity and, therefore, was prejudicial. Defendant claims that the only purpose to be served by that evidence was to show his propensity to commit crime. The relevance of such evidence must be weighed against its prejudicial effect to defendant, a determination which will not be disturbed absent clear abuse of discretion. (People v. Wright (1986), 140 Ill. App. 3d 576, 579, 488 N.E.2d 1344.) Defendant asserts, however, that the court did not weigh the probative value against the prejudicial effect of the evidence, citing the court’s language, and characterizing it as a demonstration that the court did not know it had discretion to exclude the evidence.

The language defendant identifies as showing that the court was incognizant of its discretion focuses upon its use of words such as, “I’ll have to let it in,” or “I have to let that in.” In each instance, however, the court conditioned its premise upon the introduction of certain evidence, indicating a process of weighing and evaluating, a sine qua non of discretion being exercised. There was no error.

IV

Defendant contends that the attempt language contained in the child abduction statute violates principles of due process and proportionate penalties under the Illinois Constitution. He argues that section 10 — 5(b)(10), proscribing both child abduction and attempted child abduction in the same provision, is unconstitutionally disproportionate, because section 10 — 5(d) prescribes the same penalty for either violation (Class 4 felonies); yet, the identical offense of attempt, if charged as violating the general attempt statute (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(a)), would be a Class A misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 8-4(c)(5)).

The general attempt statute applies to all offenses, unless there is manifest a legislative intent to exclude it from the statute. (People v. Wallace (1974), 57 Ill. 2d 285, 291-92, 312 N.E.2d 263.) Here, such an intent exists. The legislature, in contemplating whether the general attempt statute provided adequate coverage, found it necessary that section 10 — 5(bX10) provide for the attempted luring of a child in addition to the already covered actual luring of the child. (See 84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 220.) The intent of the legislature to increase punishment in specific child abduction cases was within its prerogative, and its decision to exclude the general attempt statute in such cases eliminated any proportion problem.

Defendant next asserts that punishing unsuccessful abductions as severely as successful abductions is an unreasonable method of accomplishing the objective of protecting children; therefore, it is in violation of due process. More or different people are not affected, he argues; only the punishment is increased for attempt, which is inconsistent with the idea of punishing attempt acts less seriously than completed acts. Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(c).

The legislative history of section 10 — 5(b)(10) reveals the concern that attempted luring of a child is as serious a threat to the safety of a child as a successful abduction. (See People v. Williams (1990), 133 Ill. 2d 449, 457, 551 N.E.2d 631.) In Williams, the supreme court observed that “[o]nce a child is taken into a vehicle and whisked away by a person harboring a criminal motive, it becomes exceedingly difficult, if not impossible, for law enforcement personnel to intervene for the protection of the child.” (133 Ill. 2d at 457.) Here, the increased penalty may have a deterrent effect on would-be violators by declaring that an attempt will be treated as harshly as a crime accomplished.

Accordingly, we find that section 10 — 5(b)(10) is not in violation of the proportionate penalties or due process clauses.

V

Lastly, defendant avers that his attorney committed errors having the cumulative effect of denying him effective assistance of counsel.

The circuit court found the testimony regarding defendant’s other crime admissible, in part, due to the assertion of an alibi defense. The court found such testimony permissible in proof of defendant’s presence at the incident in question. After the State had presented its evidence, defense counsel announced that he would not present the alibi defense if the court would exclude evidence of the other crime. The court refused because defense counsel had already made defendant’s presence an issue by filing the alibi defense, requiring the State to prove that element in its case in chief. The court also indicated that there were enough similarities between the two incidents to admit evidence of the other crime for identification and modus operandi purposes. Defendant also asserts defense counsel provided ineffective assistance of counsel in abandoning the alibi defense, which he did not argue to the jury or present testimony to support. The jury, it is claimed, then was left with the impression defendant had a propensity to commit crimes.

To sustain a claim of ineffective assistance of counsel, defendant must prove that counsel's representation fell below an objective standard of reasonableness and that counsel's shortcomings were so serious as to deprive defendant of a fair trial. Defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.) The inquiry does not, however, generally extend to the exercise of judgment, discretion, trial tactics or strategy, even where appellate counsel or the reviewing court would have handled the situation differently. (People v. Schmidt (1988), 168 Ill. App. 3d 873, 882, 522 N.E.2d 1317.) The accused is entitled to competent, not perfect, representation; the fact that a tactic was unsuccessful does not demonstrate incompetence. Schmidt, 168 Ill. App. 3d at 882.

The record reveals that counsel acted competently. He supported his new theory, that defendant’s actions did not constitute child abduction, by cross-examining the children; eliciting information from family members about defendant’s past; arguing against the exclusion of the expert; attempting to strike evidence of other crimes; objecting to alleged prejudicial instructions; filing three post-trial motions; and submitting considerable evidence in mitigation at the sentencing hearing. Based upon this pursuance of the defense, counsel’s overall conduct was competent and reasonable. Albanese, 104 Ill. 2d at 525.

From the foregoing analysis, no reversible error was committed and defendant’s conviction and sentencing must be affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.


text:
    JAMES GUERTLER, Indiv. and as Sole Surviving Partner of C & G Building Rental Partnership, Plaintiff-Appellee, v. BARLOW WOODS, INC., Defendant-Appellant (Albert Cavazos et al., Defendants).
    First District (2nd Division)
    No. 1—91—1301
    Opinion filed June 9, 1992.

      Musette H. Vogel, of Burr Ridge, Jerry Boose, of Shearer, Blood, Agrella, Boose & McGuirk, of St. Charles, and Grossman, Mitzenmacher & Schechter, of Chicago (Jeffrey S. Heuer, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Keith D. Parr and Brian T. Garelli, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Barlow Woods, Inc. (Barlow Woods), appeals the circuit court’s grant of summary judgment in favor of plaintiff, James Guertler. At issue is whether (1) the automatic stay in a bankruptcy action prevents revival of a judgment lien or tolls the statutory seven-year renewal period, and (2) a valid judgment lien originally encumbered the subject real estate.

Guertler filed a complaint in the circuit court of Cook County on July 3, 1990, against Albert Cavazos, Barlow Woods, and others, seeking to wind up the affairs of the C & G Building Rental Partnership (partnership), adjudicate the validity of liens against the partnership property, and quiet title to that property in Guertler’s name. The pleadings establish that Guertler and Cavazos formed the partnership in 1972, and, in the following year, purchased real estate in Stream-wood, Illinois (the real estate), which was conveyed to “ALBERT CAVAZOS AND JAMES GUERTLER, AS TENANTS IN COMMON.” The real estate allegedly was acquired through capital contributions made to the partnership by Guertler; Cavazos did not contribute any capital toward its purchase. A restaurant was constructed on the real estate in 1973 and leased by the partnership between August 1, 1975, and December 7, 1981. During that time, the real estate and building were the sole assets of the partnership.

On August 12, 1979, Barlow Woods made an unsecured loan, evidenced by a promissory note, to Cavazos, individually, which Cavazos failed to repay. On April 1, 1981, Barlow Woods obtained a judgment by confession on the note in the circuit court of Du Page County against Cavazos individually for $120,801.27. A memorandum of that judgment was recorded in Cook County on April 8,1981.

Cavazos filed a petition for relief pursuant to chapter 11 of the Bankruptcy Code (Code) (11 U.S.C. §1101 et seq. (1982)) on December 7, 1981, which later was converted to a proceeding under chapter 7 (11 U.S.C. §701 et seq. (1982)). On July 21, 1982, Barlow Woods filed proof of an unsecured claim for $120,301.27 plus interest in Cavazos’ bankruptcy proceeding. Cavazos was granted a discharge in bankruptcy on September 9,1982.

On February 28, 1989, Guertler filed a motion in bankruptcy court seeking to lift the automatic stay in Cavazos’ bankruptcy action so that he could proceed to quiet title to the Streamwood real estate in his name. The motion was denied by the bankruptcy judge on November 21, 1989, however, because there remained for determination the issue of whether the real estate was “partnership property or is owned in common,” since the estate succeeds to Cavazos’ interest in the partnership which “cannot be considered as lost forever.” Subsequently, a successor trustee was appointed to Cavazos’ bankruptcy estate, who filed an adversary complaint in the bankruptcy proceeding, seeking either to sell the real estate or dissolve the partnership and distribute the proceeds. For whatever reasons may have existed, but are not of record here, the bankruptcy judge sua sponte dismissed the trustee’s adversary proceeding and the underlying chapter 7 action on April 23,1990.

Guertler thereafter filed the July 3, 1990, complaint first mentioned. Barlow Woods was the sole defendant to answer the complaint in the circuit court. Guertler filed a motion for summary judgment against Barlow Woods, seeking a determination that Barlow Woods’ lien against the real estate was “null, void and unenforceable, and cannot be revived.” Barlow Woods responded with a memorandum and exhibits. The summary judgment motion was granted on March 15, 1991. Defaults were entered against all other defendants. Barlow Woods filed its notice of appeal on April 10, 1991. Thereafter, Guertler filed his affidavit supporting the prove up of defaults with 22 attached exhibits. A final judgment was entered on May 7, 1991, quieting title to the real estate in Guertler’s name.

Barlow Woods argues that the circuit court erred in finding that its judgment lien expired by operation of law. A judgment is a lien on the real estate of the individual against whom it is entered. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 101.) As a limitation on enforcement of liens, however, the statute provides, “no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same.” (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 108(a).) Barlow Woods perfected its lien on April 8, 1981, by recording its judgment against Cavazos in Cook County, and did not attempt to revive that judgment within seven years thereafter. Nevertheless, it is contended by Barlow Woods that any attempt to revive a judgment lien would have violated the automatic stay which became operative with the filing of Cavazos’ bankruptcy or, altematively, that the automatic stay tolled the seven-year period during which the judgment could be renewed. Guertler responds that the judgment expired by operation of law and was not affected by the automatic stay.

Generally, State law defines property rights in the assets of a bankrupt’s estate and is suspended only to the extent of actual conflict with the Code. (Butner v. United States (1979), 440 U.S. 48, 54-55, 59 L. Ed. 2d 136, 141, 99 S. Ct. 914, 917-18.) Absent an actual conflict, the lienholder’s interest is analyzed no differently than would occur otherwise if bankruptcy proceedings were not in progress. Butner, 440 U.S. at 55, 59 L. Ed. 2d at 141, 99 S. Ct. at 918.

The filing of a bankruptcy petition stays “any act to create, perfect, or enforce any lien against property of the estate.” (11 U.S.C. §362(aX4) (1982).) Barlow Woods claims that acts to continue or renew liens violate the automatic stay and are of no effect. The cases cited in support of that proposition, however, are inapposite, as they do not involve the revival of judgment liens, but hold that a continuation statement under the Uniform Commercial Code need not be filed by a creditor to maintain his secured status during the pendency of a debtor’s bankruptcy proceeding. See In re Chaseley’s Foods, Inc. (7th Cir. 1983), 726 F.2d 303; In re Bond Enterprises, Inc. (D.N.M. 1985), 54 Bankr. 366; In re Funding System Asset Management Corp. (W.D. Pa. 1984), 38 Bankr. 351.

A revival of a judgment is not the creation of a new judgment, but merely a continuation of that being revived. (Bank of Edwardsville v. Raffaelle (1942), 381 Ill. 486, 488, 45 N.E.2d 651; Farmers State Bank v. Hansen (1990), 196 Ill. App. 3d 295, 297, 553 N.E.2d 751.) The lien is not enlarged by a judgment’s revival, and the property of the estate available to general creditors is not threatened; indeed, extension under Illinois law merely allows the lienholder to maintain the status quo. (See In re Morton (2d Cir. 1989), 866 F.2d 561, 564 (Morton).) An attempt by Barlow Woods to revive its judgment against Cavazos in State court, therefore, could not have violated the automatic stay. Morton, 866 F.2d at 564-65; Barber v. Emporium Partnership (Utah 1990), 800 P.2d 795, 797; see also In re Willax (2d Cir. 1937), 93 F.2d 293, 294-95 (mechanic’s lien); United States v. Sayres (W.D.N.Y. 1984), 43 Bankr. 437, 439 (Federal income tax lien); In re Houts (W.D. Mo. 1982), 23 Bankr. 705, 707 (mechanic’s lien); but see In re Thomasson (W.D. Mo. 1986), 66 Bankr. 503, 505-06.

Barlow Woods also argues that section 108(c) of the Code tolls the expiration of periods governing the life of statutory liens. The Code provides:

“[I]f applicable nonbankruptcy law *** fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor *** and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of—
(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay *** with respect to such claim.” 11 U.S.C. § 108(c) (1982).

In Morton (866 F.2d 561), the judgment creditor held a judgment lien on the debtor’s residential property at the time the debtor filed a petition for bankruptcy. The relevant State law provided that unless extended in State court, a judgment lien on real property expired after 10 years. (See N.Y. Civ. Frac. L. & R. § 5203(a) (McKinney 1978).) The judgment creditor contended that section 108(c) extended the time within which the lien could be renewed. Noting that bankruptcy courts were split on the issue of whether section 108(c) tolled the expiration of renewal periods for statutory liens, and no other circuit court had reached the issue to that date, the Second Circuit Court of Appeals held that the language of section 108(c) encompassed the renewal of a statutory lien under State law. The limitation period, therefore, did not expire until the later of (1) the end of such period, or (2) 30 days after notice of the termination or expiration of the stay, as provided by section 108(c). Such an interpretation was in harmony with the purpose of section 108(c), namely, to prevent a debtor from gaining an unfair advantage over a claimant by remaining under the aegis of the automatic stay until the limitation period governing the claimant’s action has expired. Morton, 866 F.2d at 566-67.

Our supreme court has held that section 108(c) tolls the time within which to commence enforcement of a mechanic’s lien. (See Garbe Iron Works, Inc. v. Priester (1983), 99 Ill. 2d 84, 87-89, 457 N.E.2d 422 (Garbe).) Further, the majority of cases both prior to and following Morton have held that section 108(c) tolls the periods governing the life of statutory liens. (See, e.g., In re Hunters Run Limited Partnership (9th Cir. 1989), 875 F.2d 1425, 1427-29 (mechanic’s lien); In re National Oil Co. (D. Colo. 1990), 112 Bankr. 1019, 1020-22 (mechanic’s lien); In re Chemisphere Partners (N.D. Ill. 1988), 90 Bankr. 380, 382 (mechanic’s lien); In re Paul (D. Mass. 1986), 67 Bankr. 342, 346-47 (attachment against real estate); In re Thomasson (W.D. Mo. 1986), 66 Bankr. 503, 505-06 (judgment lien); In re Victoria Grain Co. (D. Minn. 1984), 45 Bankr. 2, 7 (mechanic’s lien); In re Houts (W.D. Mo. 1982), 23 Bankr. 705, 707 (mechanic’s lien); In re Design Builders, Inc. (D. Idaho 1981), 18 Bankr. 392, 395 (mechanic’s lien).) We hold, therefore, that section 108(c) tolls the statutory time period for reviving a judgment.

Barlow Woods relies upon Garbe (99 Ill. 2d 84, 457 N.E.2d 422) in arguing that the time within which to renew its judgment has yet to expire. There, in order to enforce its mechanic’s lien, it was mandatory that plaintiff join both the contractor and the property owners. (See Ill. Rev. Stat. 1979, ch. 82, par. 28.) The contractor, however, had filed for bankruptcy, and the automatic stay precluded plaintiff from proceeding with enforcement for 133 days. The court determined that under section 108(c), plaintiff should have been allowed an additional 133 days following termination of the automatic stay to file suit to enforce its mechanic’s lien after the statutory two-year limitation period had expired. Garbe, 99 Ill. 2d at 87.

Here, Barlow Woods argues that pursuant to Garbe, the period for reviving its judgment should be extended by the amount of time during which the renewal period was stayed, or six years and four months after termination of the stay. The plaintiff in Garbe was precluded from joining the debtor contractor as a necessary party in an entirely new action until the stay in bankruptcy expired or was terminated. The automatic stay in the present case, however, did not prevent Barlow Woods from reviving its judgment under the relevant Illinois statute, since it was a continuation of a matter already before the bankruptcy court. Further, the Garbe court noted that the limitation period in the Illinois Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 9) “is not an ordinary statute of limitation since it conditions the right to enforce a mechanic’s lien and not just the remedy.” (Garbe, 99 Ill. 2d at 88.) Garbe, therefore, is distinguishable.

Barlow Woods perfected its judgment lien on April 8, 1981. Cavazos filed his bankruptcy petition on December 7, 1981. Although the judgment lien normally would have expired on April 8, 1988, the pending bankruptcy proceeding tolled its expiration. Barlow Woods was prohibited from executing on the real estate during the pending bankruptcy proceeding; Cavazos, however, may not eliminate Barlow Woods’ judgment simply by filing for bankruptcy at the appropriate time and then allowing the limitation period to run while he remained under the protection of the automatic stay. Section 108(c) gave Barlow Woods 30 days after termination of the stay to revive its judgment. The bankruptcy action was dismissed on April 23, 1990, and Barlow Woods took no action within the statutory 30-day expiration period to secure its lien against the real estate. Consequently, the judgment lien expired by operation of law under the provisions of section 108(c).

Because Barlow Woods failed to revive its judgment while the automatic stay was in force, or within 30 days after its termination, we need not address the issue of whether a valid judgment lien originally encumbered the subject real estate. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


author: JUSTICE DiVITO

text:
    CONSTRUCTION AND GENERAL LABORERS’ DISTRICT COUNCIL OF CHICAGO AND VICINITY, Plaintiff-Appellant, v. JAMES McHUGH CONSTRUCTION COMPANY, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—1733
    Opinion filed June 9,1992.

      Arnold & Kadjan, of Chicago (Donald D. Schwartz and Charles A. Linn, of counsel), for appellant.
    Pedersen & Houpt, of Chicago (Donald J. Moran and Emmanuel A. Sevastianos, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Construction and General Laborers’ District Council of Chicago and Vicinity (Laborers’ Council) brought suit on behalf of laborers employed by a subcontractor of defendant James McHugh Construction Company (McHugh), alleging violations of minimum wage requirements pursuant to the Illinois Prevailing Wage Act (Wage Act) (111. Rev. Stat. 1989, ch. 48, par. 39s — 1 et seq.). The circuit court granted McHugh’s motion to dismiss Laborers’ Council’s complaint, finding that the complaint was preempted by the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §1001 et seq. (1988)). Laborers’ Council appeals, contending (1) that the circuit court erred in holding that its complaint for underpayment of minimum wages required by the Wage Act relates to employee benefit plans and thus is preempted by ERISA; and (2) that McHugh, as a general contractor, is liable under the Wage Act for its subcontractor’s failure to pay minimum wages to its employees.

On July 30, 1990, Laborers’ Council, a labor union which acts as the bargaining agent and representative for construction laborers, filed a complaint against McHugh, a general contractor of a public works construction project. Laborers’ Council’s complaint alleged that McHugh was obligated to pay fringe benefit contributions owed to an employee benefit plan by its subcontractor, Suburban Plumbing Company and SPC Mechanical Contractors (Suburban/SPC).

Specifically, the complaint averred that McHugh entered into a contract with Suburban/SPC, its subcontractor, to perform construction work on a “public works” project; subsequently, Suburban/SPC, bound by a collective bargaining agreement with Laborers’ Council, failed to pay six of its employees “fringe benefits contributions.” Accordingly, Laborers’ Council sought to recover from McHugh the sum of $13,710.16, the difference between the wages paid and the rates provided by the bargaining agreements and the Wage Act. Laborers’ Council predicated recovery upon section 11 of the Wage Act which provides, in pertinent part:

“Any laborer, worker or mechanic employed by the contractor or by any sub-contractor under him who is paid for his services in a sum less than the stipulated rates for work done under such contract, shall have a right of action for whatever difference there may be between the amount so paid, and the rates provided by the contract ***. *** An action brought to recover same shall be deemed to be a suit for wages, and any and all judgments entered therein shall have the same force and effect as other judgments for wages.” (Ill. Rev. Stat. 1989, ch. 48, par. 39s — 11.)

According to the Wage Act, the “prevailing rate of wages” means “the hourly cash wages plus fringe benefits for health and welfare, insurance, vacations and pensions paid generally.” Ill. Rev. Stat. 1989, ch. 48, par. 39s — 2.

McHugh moved to dismiss Laborers’ Council’s complaint on the basis that ERISA preempts State court actions based on State law as they relate to employee benefit plans, and that the Wage Act provides an employee with a cause of action only against his immediate employer, in this case, Suburban/SPC. The circuit court granted McHugh’s motion to dismiss on the basis that the cause of action was preempted by ERISA, allowing Laborers’ Council leave to file an amended complaint.

Laborers’ Council’s amended complaint, filed January 3, 1991, set forth essentially the same allegations, with one variation: instead of alleging that “Suburban/SPC failed to pay fringe benefit contributions,” the amended complaint alleged that “Suburban/SPC underpaid the ‘prevailing rate of wages’ *** by the amount of the fringe benefit component of those wages.” McHugh again moved to dismiss the complaint on the basis that ERISA preempted the cause of action and that the Wage Act provides a right of action only against an immediate employer. The circuit court granted McHugh’s motion to dismiss, finding that Laborers’ Council’s cause of action was preempted by section 514(a) of ERISA. 29 U.S.C. § 1144(a) (1988).

Laborers’ Council initially contends that the circuit court erred in finding that its amended complaint, brought pursuant to the Wage Act, was preempted by ERISA. Specifically, Laborers’ Council maintains that its claim for wages under the Wage Act in no manner relates to any benefit plan, and thus is not preempted by ERISA.

ERISA was designed as a comprehensive statute to promote the interests of employees and their beneficiaries in employee benefit plans. (Shaw v. Delta Air Lines, Inc. (1983), 463 U.S. 85, 90, 77 L. Ed. 2d 490, 497, 103 S. Ct. 2890, 2896.) Although ERISA does not mandate that employers provide any particular benefits, for employers who do provide certain pension and welfare benefits, ERISA imposes participation, funding, and vesting requirements, and sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility. (29 U.S.C. §§1021-31, 1051-86, 1104-1114 (1988).) ERISA also includes an express preemption provision providing that it “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” covered by the statute. (29 U.S.C. § 1144(a) (1988).) An “employee welfare benefit plan” is defined by ERISA as:

“any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, *** medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs.” (29 U.S.C. §1002(1) (1990).)

Likewise, an “ ‘employee pension benefit plan’ *** mean[s] any plan, fund or program which *** provides retirement income to employees.” 29 U.S.C. §1002(2)(a)(i) (1988).

The question of whether a certain State action is preempted by a Federal law is one of congressional intent. (Pilot Life Insurance Co. v. Dedeaux (1987), 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549; Ingersoll-Rand Co. v. McClendon (1990), 498 U.S. 133, 138, 112 L. Ed. 2d 474, 483, 111 S. Ct. 478, 482.) The Supreme Court has examined the scope of ERISA and has determined that its “deliberately expansive” language was “designed to ‘establish pension plan regulation as exclusively a federal concern.’ ” (Pilot Life Insurance Co. v. Dedeaux, 481 U.S. at 46, 95 L. Ed. 2d at 46, 107 S. Ct. at 1552, quoting Alessi v. Raybestos-Manhattan, Inc. (1981), 451 U.S. 504, 523, 68 L. Ed. 2d 402, 416, 101 S. Ct. 1895, 1906.) The Court has further held that Congress used the words “relate to” in their broad sense, rejecting more limited preemption language that would have made the clause “applicable only to state laws relating to the specific subjects covered by ERISA.” (Shaw v. Delta Air Lines, Inc., 463 U.S. at 98, 77 L. Ed. 2d at 502, 103 S. Ct. at 2900.) To underscore its intent that section 514(a) of ERISA be expansively applied, Congress used equally broad language in defining the “State law” that would be preempted: such laws include “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144(c)(1) (1990).

“A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” (Shaw v. Delta Air Lines, Inc., 463 U.S. at 96-97, 77 L. Ed. 2d at 501, 103 S. Ct. at 2900.) Under this “broad commonsense meaning,” a State law may “relate to” a benefit plan, and thus be preempted, even if the law is not specifically designed to affect such plans, or the effect is indirect. (Pilot Life Insurance Co. v. Dedeaux, 481 U.S. at 47, 95 L. Ed. 2d at 48, 107 S. Ct. at 1553.) Thus, such connection exists where a State statute prescribes the type and amount of an employer’s contributions to a plan, the rules and regulations under which the plan operates, or the nature and amount of the benefits provided thereunder. General Electric Co. v. New York State Department of Labor (2d Cir. 1989), 891 F.2d 25, 29.

Notwithstanding its breadth, the preemptive scope of ERISA is neither all-encompassing, nor unlimited. (Shaw v. Delta Air Lines, Inc., 463 U.S. at 100 n.21, 77 L. Ed. 2d at 503 n.21, 103 S. Ct. at 2901 n.21; Aetna Life Insurance Co. v. Borges (2d Cir. 1989), 869 F.2d 142, 145; Rebaldo v. Cuomo (2d Cir. 1984), 749 F.2d 133, 138.) “Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” (Shaw v. Delta Air Lines, Inc., 463 U.S. at 100 n.21, 77 L. Ed. 2d at 503 n.21, 103 S. Ct. at 2901 n.21.) Correspondingly, ERISA does not invalidate those State statutes whose effect on pension plans is simply tangential in nature. Shaw v. Delta Air Lines, Inc., 463 U.S. at 100 n.21, 77 L. Ed. 2d at 503 n.21, 103 S. Ct. at 2901 n.21.

In the case sub judice, Laborers’ Council asserts that its claim for payment of minimum wages, even if the amount of wages sought has been determined by the amount of unpaid benefit contributions (welfare, pension, and education) as required by the Wage Act, does not in any manner “relate to” a benefit or pension plan. Rather, Laborers’ Council contends that there is no benefit plan involved in the instant case; it maintains that its claim “relates only to wages.” For support, Laborers’ Council relies upon Golen v. Chamberlain Manufacturing Corp. (1985), 139 Ill. App. 3d 53, 487 N.E.2d 121, where the court held that the plaintiff’s claim that the defendant was liable for breach of an employment contract for pension credits was not preempted by ERISA. The Golen court reasoned that because the plaintiff’s claim did not concern the substance of the pension plan, nor did it concern regulation of the plan, the pension plan was only tangentially and incidentally involved. Golen v. Chamberlain Manufacturing Corp., 139 Ill. App. 3d at 57-58.

Laborers’ Council also relies upon In re Tap Electrical Contracting Service, Inc. (1989), 156 A.D.2d 612, 549 N.Y.S.2d 118, where the court addressed the issue of whether a claim of an employer’s underpayment of prevailing wages and supplements brought pursuant to a New York statute similar to the Wage Act was preempted by ERISA. The Tap court held that “[s]ince the petitioner did not provide its employees with vacation and holiday supplements through a plan but rather, paid them through its payroll, ERISA does not preclude the application of the New York State Labor Law to regulate the rate of such payments.” (In re Tap Electrical Contracting Service, Inc., 156 A.D.2d at 613, 549 N.Y.S.2d at 120.) In so holding, the Tap court relied upon Massachusetts v. Morash (1989), 490 U.S. 107, 116, 104 L. Ed. 2d 98, 109, 109 S. Ct. 1668, 1673, which stated “[i]t is unlikely that Congress intended to subject to ERISA’s reporting and disclosure requirements those vacation benefits which by their nature are payable on a regular basis from the general assets of the employer and are accumulated over time only at the election of the employee.” The Tap court further held that several of the “ supplemental] plans were covered and governed by ERISA, namely the welfare, pension, annuity and joint educational funds, and that the matter must therefore be remitted to the Department of Labor to compute the exact amount of non-ERISA supplement underpayments.” In re Tap Electrical Contracting Service, Inc., 156 A.D.2d at 614, 549 N.Y.S.2d at 120.

Although initially it appears that Laborers’ Council’s position is well taken, the strength of its argument diminishes with a review of the cases addressing the preemption question. Those cases are predominantly the decisions of Federal courts which are controlling in the interpretation of a Federal statute. (Elgin, Joliet & Eastern Ry. Co. v. Industrial Comm’n (1956), 9 Ill. 2d 505, 507, 138 N.E.2d 553; Golden Bear Family Restaurants, Inc. v. Murray (1986), 144 Ill. App. 3d 616, 619-20, 494 N.E.2d 581.) Admittedly, the distinction between State laws that “relate to” employee benefit plans and those that have only a “tenuous, remote, or peripheral” impact is not always clear. One way to bring the distinction into focus is to compare the types of State laws that courts have found to be preempted to those that have survived challenges on preemption grounds.

State laws that have been ruled not preempted include: a generally applicable garnishment law under which creditors can garnish ERISA welfare benefits (Mackey v. Lanier Collections Agency & Service, Inc. (1988), 486 U.S. 825, 100 L. Ed. 2d 836, 108 S. Ct. 2182); a law requiring companies to make lump-sum severance payments when closing a plant (Fort Halifax Packing Co. v. Coyne (1987), 482 U.S. 1, 96 L. Ed. 2d 1, 107 S. Ct. 2211); a State es-cheat law governing ERISA-covered benefit checks and drafts which were issued but not collected (Aetna Life Insurance Co. v. Borges, 869 F.2d 142); a law prescribing what hospitals can charge for in-patient care, thereby preventing benefit plans from negotiating their own discount rates with hospitals (Rebaldo v. Cuomo, 749 F.2d 133); and section 5 of the Wage Act, which governs vacation plans (Golden Bear Family Restaurants, Inc. v. Murray, 144 Ill. App. 3d 616).

State laws, or actions pursuant to State law, that have been preempted include: a State law wrongful discharge claim based on an employer’s desire to avoid making contributions to a pension plan (Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 112 L. Ed. 2d 474, 111 S. Ct. 478); common law tort and contract actions asserting improper processing of a claim for benefits under an ERISAcovered benefit program (Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 95 L. Ed. 2d 39, 107 S. Ct. 1549); a law forbidding discrimination in employee benefit programs on the basis of pregnancy (Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 77 L. Ed. 2d 490, 103 S. Ct. 2890); a law prohibiting offsets of workers’ compensation payments against pension benefits (Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 68 L. Ed. 2d 402, 101 S. Ct. 1895); section 13 of the Wage Act, proscribing and limiting actions concerning pension contributions (Plumbers’ Pension Fund, Local 130 v. Niedrich (7th Cir. 1989), 891 F.2d 1297); a law requiring that the wage rate, including “supplements,” on public works not be less than the prevailing rate paid in the locality (General Electric Co. v. New York State Department of Labor, 891 F.2d 25); a city resolution and county ordinance requiring payment of “prevailing wages” to employees before building permits for private construction would be issued (Associated Builders & Contractors, Golden Gate Chapter, Inc. v. Baca (N.D. Cal. 1991), 769 F. Supp. 1537); and a State law cause of action for denial of severance benefits based on breach of contract and violation of the Wage Act (Arnold v. Babcock & Wilcox Co. (1988), 123 Ill. 2d 67, 525 N.E.2d 59).

Generalizing from the preceding cases, we conclude that the circuit court did not err in holding that Laborers’ Council’s claim was preempted by ERISA. ERISA preemption is triggered by not just any indirect effect on administrative procedures, but rather by an effect on the primary administrative functions of benefit plans, such as determining an employee’s eligibility for a benefit and the amount of that benefit. (See Aetna Life Insurance Co. v. Borges, 869 F.2d at 146-47.) “[T]he Illinois Wage Payment Collection Act, insofar as it applies to employer contributions to employee benefit plans, is preempted by ERISA.” Baker v. Caravan Moving Corp. (N.D. Ill. 1983), 561 F. Supp. 337, 342. But see Upholsterer’s Inter national Union Health & Welfare Fund Trustees v. Pontiac Furniture, Inc. (C.D. Ill. 1986), 647 F. Supp. 1053, 1056-57.

In the instant case, although Laborers’ Council insists that its claim is one for “wages” only, those wages are based upon fringe benefit contributions for “health and welfare, insurance, vacations, and pensions,” within the purview of ERISA. (Ill. Rev. Stat. 1989, ch. 48, par. 39s — 2.) As McHugh correctly points out, Laborers’ Council’s claim seeks to recover the underpayment of pension, welfare, and education benefits that Suburban/SPC owed to the funds. The “fringe benefit contribution compliance audit” performed on Suburban/SPC, attached to Laborers’ Council’s complaint, specifically finds underpayment of welfare, pension, and education contributions.

Although the regulation of labor costs in public works projects is surely a valid exercise of a State’s traditional regulatory authority, and as such should not be superseded by ERISA “unless this conclusion is unavoidable,” preemption in the instant case is indeed necessary and unavoidable. (See Rebaldo v. Cuomo, 749 F.2d at 138.) Those “wages” which Laborers’ Council seeks to recover are welfare and pension contributions in the form of “fringe benefits”; as such, its claim pursuant to the Wage Act is preempted by ERISA. Baker v. Caravan Moving Corp., 561 F. Supp. at 342; see Mylstar Electronics, Inc. v. Donald J. McNeil (N.D. Ill. June 2, 1986) No. 86 — C—387 (holding that ERISA preempts the operation of the Illinois Wage Act insofar as it would require the payment of benefits under a severance plan).

Because of our finding that Laborers’ Council’s claim is preempted by ERISA, we need not address Laborers’ Council’s second contention that McHugh, as the general contractor, is liable for a subcontractor’s violation of the Wage Act.

Based on the foregoing analysis, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.


author: PRESIDING JUSTICE GREIMAN JUSTICE TULLY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY TRULY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—3149
    Opinion filed June 17,1992.

      TULLY, J., concurring in part and dissenting in part.
    J. Owen Freelon, of Freelon & Associates, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

After a bench trial, defendant Billy Truly was found guilty of armed robbery of a grocery store and sentenced to 10 years in prison.

In this appeal, defendant contends (1) he received ineffective assistance of counsel when his attorney failed to investigate, prepare and present defendant’s alibi to the crime; (2) his attorney failed to inform him that he was being counseled by a law student and failure to obtain defendant’s written consent for such counseling constituted per se ineffective assistance of counsel; and (3) the cumulative effect of the errors committed by his attorney deprived defendant of his right to effective assistance of counsel.

We affirm the trial court's ruling that there was no per se violation for the failure to obtain defendant’s permission to be interviewed by a law student, but reverse in finding there was ineffective assistance of counsel for failure to investigate, prepare and present defendant’s alibi.

At about 7 p.m. on December 28, 1987, two men, one of whom was later identified as defendant, entered George’s Foods on South Kedzie Street. Said Alharsha, the owner of the store, was present with his two brothers, Naser Alharsha and Ahmed Alharsha. Said Alharsha testified that defendant nodded to his accomplice, who then told Said that it was a stickup. The two men took money from the cash register, the wallets of the three brothers and ran out of the store.

Said testified that he next saw defendant at about 11:30 a.m. on January 1, 1988, four days after the holdup. When defendant entered the store with two other men, Said pushed the silent alarm button. Defendant carried a golf club and said “Don’t worry about it, it’s not a stick-up.”

Defendant told Said that he knew the store had been robbed and that if Said wanted to live and work in the neighborhood, he would have to pay him and the two men with him $50 per week. Said testified that he haggled over price with defendant until police arrived, then advised police that defendant committed the December 28 robbery and was now attempting to extort money from him. Both Said and his brother Naser testified that they knew defendant prior to the robbery, from the neighborhood.

Officer Smith testified for the State that when he answered the silent alarm at George’s Foods on January 1, 1988, Said identified defendant as the person involved in the earlier robbery and who was now demanding protection money. After Smith arrested defendant and took him to the police station, defendant acknowledged to Smith that he was aware of the robbery and wanted the $50 as protection money to keep the store from being robbed again.

After the trial court found defendant guilty of armed robbery, defendant filed an amended motion for new trial based upon incompetency of counsel.

At that hearing, defendant testified that his trial counsel visited him only on the days he was to appear in court, and the visits lasted only 5 to 10 minutes. Defendant stated that he provided counsel with the names and addresses of four potential witnesses who could testify that during the time of the alleged robbery, defendant was recuperating from a gunshot wound and that the complainants had ulterior motives for identifying defendant as the culprit.

Defendant claims he directed his counsel to subpoena these witnesses and Mt. Sinai Hospital records and personnel to establish that he had been hospitalized prior to the robbery and retained some physical incapacity at the time of the robbery. Defendant further testified that on the day of trial, he asked counsel to request a continuance because counsel had not subpoenaed any of the witnesses, his medical records, or his physical therapist.

Counsel testified that either he, his partner or his law intern spoke to defendant whenever defendant’s case was before the court, a total of approximately 10 to 12 times before trial. He acknowledged that he and defendant discussed possible defense theories and trial strategy and admitted that three to four months before the trial, defendant had informed his law intern of the alleged alibi witnesses.

Counsel had attempted, without success, to contact the witnesses by telephone and therefore contends he was not directly in a position to evaluate the potential value of these witnesses to the defense. No investigator from the public defender’s office was requested to attempt to contact the potential witnesses, nor were they subpoenaed. Counsel acknowledged that he assumed the witnesses would come forward on their own, and because of their failure to make themselves available, he was unable to prepare an alibi defense based upon their testimony.

When asked if he was ready to proceed with the trial on the trial date, counsel responded that “the pleadings were completed and the case could have gone to trial. I don’t believe that Mr. Truly’s alleged witnesses were there that day.” While he testified that it was defendant’s decision to go to trial, he acknowledged that he had told defendant that he doubted he could get a continuance since he had earlier made a trial demand.

Defendant’s counsel testified that he did remember defendant mentioning medical records, but thought that they concerned defendant’s health only at the time of the arrest, not at the time of the robbery, so he did not consider them relevant and did not obtain them.

Henry Bynum, defendant’s stepfather, was one of the four defendant requested counsel subpoena for trial. Mr. Bynum testified at the post-trial hearing that on the day of the robbery, defendant left Bynum’s house at 7 p.m., the approximate time of the robbery, to run an errand for his mother, and did not return home until 9 p.m., and at that time, defendant did not walk without the aid of a cane, due to a recent gunshot wound.

Lawrence Swift, defendant’s uncle and another of the four people defendant had requested be subpoenaed for trial, also appeared at the post-trial hearing. However, the substance of his testimony was ruled hearsay. Defendant’s post-trial counsel made an offer of proof that Mr. Swift would testify as to a conversation he had with Said that would reflect on Said’s motivation for retribution against defendant. The offer of proof indicated that Said was upset with defendant because he was dissatisfied with some radios and VCRs that defendant had sold him, believed defendant had cheated him and made a threat to even the score.

Defendant’s other two alibi witnesses, at least one of whom was medical personnel who would testify as to defendant’s physical condition, did not testify at the hearing; Joyce Stevens was subpoenaed, but the fourth witness, Christine Matlid, could not be located. While defendant also subpoenaed Mt. Sinai Hospital for his medical records for the purpose of the hearing, those documents were not tendered, so the court had no chance to consider them in its ruling.

The “benchmark” in determining whether there has been ineffective assistance of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064; People v. Davis (1990), 203 Ill. App. 3d 129, 139, 560 N.E.2d 1072; People v. Garza (1989), 180 Ill. App. 3d 263, 267, 535 N.E.2d 968.) A reviewing court does not evaluate matters of judgment, discretion or trial tactics. Davis, 203 Ill. App. 3d at 139.

The U.S. Supreme Court developed a fact-sensitive analysis in Strickland which seeks to measure “ ‘the quality and impact of counsel’s representation under the circumstances of the individual case.’ ” (Garza, 180 Ill. App. 3d at 268, quoting 2 W. LaFave & J. Israel, Criminal Procedure §11.10, at 28 (Supp. 1988).) A defendant must prove (1) that counsel’s representation fell below an objective standard of reasonableness and the shortcomings of counsel were so severe as to deprive defendant of a fair trial, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246; People v. Gunartt (1991), 218 Ill. App. 3d 752, 761, 578 N.E.2d 1081; Garza, 180 Ill. App. 3d at 268.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Davis, 203 Ill. App. 3d at 141; Garza, 180 Ill. App. 3d at 269.

A reviewing court must evaluate the attorney’s performance from counsel’s perspective considering the circumstances at the time of trial, without the distorting effects of hindsight, and the defendant must overcome the strong presumption that the chailenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; Garza, 180 Ill. App. 3d at 269.

Defendant first contends that his counsel failed to investigate and develop defendant’s alibi, thus resulting in ineffective assistance of counsel similar to the situations in People v. Garza (180 Ill. App. 3d 263, 535 N.E.2d 968) and People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875. These cases found that failure to adequately investigate and develop an available defense, or failure to present available witnesses who can corroborate a defense, may be ineffective assistance of counsel. Garza, 180 Ill. App. 3d at 269; Solomon, 158 Ill. App. 3d at 436. See also People v. Gunartt (1991), 218 Ill. App. 3d 752, 578 N.E.2d 1081; People v. O’Banner (1991), 215 Ill. App. 3d 778, 575 N.E.2d 1261; Davis, 203 Ill. App. 3d 129, 560 N.E.2d 1072.

In Solomon, defendant’s counsel had raised an entrapment defense to the charge of unlawful delivery of a controlled substance, but failed to take reasonable steps to find the witness who could have proved the element of improper inducement. The Solomon court found assistance of counsel was ineffective where defense counsel improperly introduced the entrapment defense without the witness and failed to secure chemical analysis of the controlled substance which was the subject matter of the case. Solomon, 158 Ill. App. 3d at 436-37.

In Garza, the appellate court held there was ineffective assistance of counsel where the evidence was very closely balanced and defense counsel failed to elicit the discrepancies and inconsistencies in the testimony of the State’s sole eyewitness who linked the defendant to the crime. The court concluded there was a reasonable probability that the level of performance by defendant’s counsel influenced the result of the proceedings. Garza, 180 Ill. App. 3d at 269.

Moreover, in Garza, defense counsel failed to offer in evidence two photographs that might have cast doubt upon the witness’ ability to identify defendant. While the State argued on appeal that this was merely a tactical decision by defense counsel, the appellate court reasoned that since counsel had failed to obtain the photos and, in fact, never saw them, he could not have made an informed tactical decision one way or the other. Garza, 180 Ill. App. 3d at 269.

We apply the same reasoning to the case at bar. Counsel testified that he would not include any witnesses in the proceedings if he did not have contact with them or know what their testimony would be. While the State here argues that it was a matter of trial strategy whether to require appearance of the four witnesses, we find, as the Garza court found, that counsel could not have made a strategic decision since he admitted that he had made no contact with the witnesses and did not know what the content of their testimony might be.

Traditionally, courts have not reviewed an attorney’s choices when made on the basis of strategic considerations. However, these strategic decisions may be made only after there has been a “thorough investigation of all matters relevant to plausible options.” (Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066; People v. Whittaker (1990), 199 Ill. App. 3d 621, 628-29, 557 N.E.2d 468.) We find that defendant here apprised his attorney on several occasions of what appears to be a plausible option: an alibi coupled with a physical incapacity.

Defendant repeatedly told his defense counsel that the testimony of the four witnesses would reveal (1) his whereabouts at the time of the robbery, 33 blocks away from the complaining witnesses’ store; (2) that defendant was physically handicapped, walking with a cane at the time of the robbery, and not likely to have run out of the store as complainants testified; and (3) that the complainants had a revenge motive in identifying defendant as one of the robbers.

Counsel testified that he thought these potential corroborating witnesses would come forward on their own, and when they did not, the record establishes that he made no reasonable attempt to contact them. When his initial phone calls could not raise the witnesses, he failed to subpoena these witnesses or request that an investigator from the public defender’s office find them.

The situation in this case differs from a situation in which an attorney’s decision whether to call a witness to testify may be considered strategic. (See People v. Flores (1989), 128 Ill. 2d 66, 85-86, 538 N.E.2d 481.) Here, counsel’s decision could not be considered strategic since he failed to investigate all matters relevant to the plausible defenses of alibi, incapacity and revenge that defendant proffered to him. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.

This court has previously noted that representation involves more than the courtroom conduct of counsel:

“ ‘The exercise of the utmost skill during trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. Such omissions, of course, will rarely be visible on the surface of the trial, and to that extent the impression of the trial judge [or reviewing judge] regarding the skill and ability of counsel will be incomplete.’ ” Davis, 203 Ill. App. 3d at 141, quoting Moore v. United States (3d Cir. 1970), 432 F.2d 730, 739.

We find from the record that counsel was derelict in his duties in that he or his assistants never made a reasonable attempt to locate or subpoena the four potential witnesses, witnesses who defendant repeatedly told counsel could corroborate his defense theories, witnesses whose names and addresses were provided to counsel by defendant. This dereliction amounts to ineffective assistance of counsel because we find that counsel’s errors fall below an objective standard of reasonableness and that there is at least a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different. Further, we find the evidence against defendant'to be closely balanced.

The State’s evidence is grounded in the testimony of Said and Naser Alharsha, who both stated that they knew defendant prior to the robbery and that they recognized him during the robbery. However, defense counsel failed to investigate and develop defendant’s plausible theory that the brothers’ identification of him was fabricated out of a desire for revenge for past business dealings with defendant. Defendant informed his counsel that he had a witness, Lawrence Swift, who could testify to this theory on his behalf.

The revenge theory, coupled with defendant’s proffered alibi that he was physically and geographically unable to commit the robbery, forms a plausible defense theory for which defendant offered four witnesses. Because defense counsel failed to put forward defendant’s plausible alibi, to which the revenge theory was integral, we cannot say that the testimony of the Alharsha brothers carries such weight so as to provide a rational trier of fact proof of guilt beyond a reasonable doubt if the other evidence had been offered.

While the trial court heard testimony from two of defendant’s potential witnesses at the hearing for new trial, the other two witnesses and the hospital records were not available to defendant at that time. The trial court stated that the testimony of the two witnesses did not persuade it to grant the motion, but we find that their testimony demonstrates that defendant was in fact prejudiced by his counsel’s failure to secure witnesses and adequately investigate defense theories.

Consideration of the testimony of these witnesses at a post-trial hearing is in a different context than it would have been had it been offered during the course of the trial rather than subsequent to the trier of fact determining defendant’s guilt.

In People v. Perez (1992), 148 Ill. 2d 168, in a death penalty post-conviction hearing, defense counsel was found ineffective when he failed to pursue or send a court-appointed investigator to pursue mitigating information and witnesses supplied by defendant.

While we recognize that Perez concerns a death penalty hearing, the situation in the present case is similar in that defendant supplied counsel with specific information that was potentially exonerating. The present case is possibly more egregious since counsel knew of the information approximately four months before trial, rather than only a few days as was the situation in Perez. Also, counsel here, as in Perez, failed to ask for a continuance to investigate the proffered evidence, even though defendant here requested he do so.

The Perez court stated that had the jury heard the evidence which had not been made available to it, there is a probability that it would have concluded that the balance of factors did not warrant death. Similarly we must conclude that there might have been a reasonable doubt as to defendant’s guilt had the trier of fact heard the witnesses defense counsel failed to locate.

We further find the record establishes that defense counsel failed to obtain, or attempt to obtain, defendant’s written consent to allow a law student to help prepare defendant’s case, as is required pursuant to Supreme Court Rule 711, and that counsel did not believe such consent was necessary where no court appearance was involved. However, that failure to obtain written consent is not per se ineffective assistance of counsel. While we agree that the constitutional rights of a defendant may not be compromised, we do not find that defendant’s rights have been put at such risk in this case by the failure to obtain written consent.

As noted above, judicial review regarding ineffective assistance of counsel is performed on a case-by-case basis in an attempt to comprehend counsel’s perception and integration of the combination of facts, circumstances and law unique to that case. The situation in one case may not easily be analogized to the situation in another. To hold that an attorney’s failure to obtain defendant’s written consent is per se ineffective assistance of counsel would handicap and restrict judicial review of such violations in other cases where ineffective assistance of counsel is alleged.

Defendant cites two cases involving the representation of defendants by law students in proceedings before a judge. (People v. Schlaiss (1988), 174 Ill. App. 3d 78, 528 N.E.2d 334; In re Moore (1978), 63 Ill. App. 3d 899, 380 N.E.2d 917.) However, we do not find those cases apply to the present situation. In Schlaiss, the court found that defendant was denied his sixth amendment right to counsel because he was not aware that the person representing him in his trial was not a licensed attorney, and he had not given consent to be represented by a law student.

The defendant in Moore appeared pro se in a hearing in which the State charged that defendant required mental treatment. The appellate court found that defendant was not informed that the legal advisor that he had chosen, a law student, was not a licensed attorney, so had not given proper consent.

We agree with defendant that he should receive zealous representation by his attorney at each stage of the trial process. A defendant is entitled to competent representation out of court as well as in court, as we have clearly set forth here in our discussion regarding counsel’s assessment of defendant’s four potential witnesses. But this case cannot support a charge of ineffective assistance of counsel based upon counsel’s failure to obtain defendant’s consent allowing a Rule 711 law student to participate in the preparation of his case.

Defendant raises additional instances of his counsel’s actions or omissions at trial that he contends cumulatively amount to ineffective assistance of counsel: (1) failure to file a motion in limine objecting to any reference to defendant’s alleged crime at the store on January 1, 1988; (2) failure to object to hearsay testimony of complainant as to the armed robbery and defendant’s alleged attempt at extortion; (3) failure to object to the hearsay testimony of the arresting officer as to the armed robbery and extortion; (4) counsel’s introduction into evidence of the police report; and (5) counsel’s statement in closing argument that defendant had tried to extort money from the Alharshas.

We cannot say that these enumerated actions or omissions, even taken cumulatively, amount to ineffective assistance of counsel since they appear to be within the generally protected category of strategic trial decisions.

However, we have indicated that defendant’s trial counsel failed to make a reasonable attempt to contact witnesses and submit hospital records that might have provided corroborative evidence to a valid defense theory benefitting defendant. Such failure amounts to ineffective assistance of counsel since we find that the omissions so undermine the proper functioning of the adversarial process that we cannot rely upon the trial as having produced a just result.

Accordingly, we reverse the judgment of the circuit court and grant defendant a new trial.

Reversed.

CERDA, J., concurs.

JUSTICE TULLY,

concurring in part and dissenting in part:

I agree that defense counsel’s failure to obtain written permission to allow a law student acting under the authority of Supreme Court Rule 711 (c)(1) (134 Ill. 2d R. 711 (c)(1)) to assist defense counsel is not a per se violation of the defendant’s right to effective assistance of counsel for the reasons articulated in the opinion.

However, I must respectfully dissent with my colleagues that defendant was rendered ineffective assistance by his counsel which resulted in an unjust trial. The foundation of my concurrence on this issue is the rule of law established in Strickland v. Washington (1984), 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Strickland issued a double-pronged mandate that counsel’s behavior must fall below an objective standard of reasonableness and counsel’s behavior must fall to a level of deficiency such that the eventual outcome of the trial would have been different but for counsel’s actions. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Both prongs of the Strickland mandate must be met to reach a conclusion of unreliable trial results. I am of the opinion that defense counsel’s actions, viewed in the totality of circumstances surrounding the case, did not meet the criteria established in Strickland.

The defendant argues that a subpoena of certain hospital records would have validated his claim that he was incapacitated at the time the robbery occurred. Yet, defendant admitted to Officer Smith that two days after his period of “incapacitation” he freely walked into the site of the robbery and demanded protection money. What, in effect, would the hospital records have established? Could the hospital records have conclusively established the condition of the patient at the time of the robbery or would they have established the defendant’s condition during the time he was under hospital supervision for his wound? Even assuming arguendo that defendant needed the assistance of a cane to ambulate, the golf club which he carried on the day he entered the robbery site to demand extortion money could have served this function. Thus, defense counsel’s claim that the defendant’s medical records were not relevant and had no bearing on the case is entirely credible and falls within the scope of counsel’s trial strategy.

Defendant’s argument that his counsel’s failure to interview witnesses who could have established his alibi to the crime also fails to meet the criteria set forth in Strickland. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Defense counsel did not simply ignore defendant’s request to contact certain witnesses. Counsel made the effort to contact the requested witnesses but was unsuccessful. Counsel discussed trial strategy with the defendant. It was only after the defendant made the decision to go to trial without the benefit of the information the witnesses could or could not have provided that counsel proceeded. The defendant did not request counsel to ask for a continuance to pursue the location of the witnesses. Therefore, defense counsel cannot be said to have failed to investigate or act upon his client’s information but rather counsel clearly proceeded with a trial strategy that was implicitly sanctioned by the defendant. Accordingly, no finding of unreliability in the trial process has been substantiated due to the actions of defendant’s counsel.