author: JUSTICE BARRY

text:
    WILLIAM W. SWEASY et al., Plaintiffs-Appellees, v. RICHARD SNYDER et al., Defendants-Appellants.
    Third District
    No. 3—89—0109
    Opinion filed December 6, 1989.
    Modified on denial of rehearing January 30, 1990.

      Floyd C. Dailey, of Harvey & Stuckel, Chartered, of Peoria (R. Wayne Harvey, of counsel), for appellants.
    William W. Sweasy, of Peoria, appellee pro se.

   JUSTICE BARRY

delivered the opinion of the court:

This is a landlord-tenant dispute. Plaintiffs William W. and Sherrie L. Sweasy are the owners and lessors of residential property located at 2701 South Cameron Lane in Bartonville, Illinois. Defendants Richard and Angela Snyder were lessees of the property during a one-year period from July 1, 1986, through June 30, 1987. The suit arose in June 1987, when defendants failed to make their monthly rental payment of $550 on June 1, the date it was due pursuant to the parties’ lease agreement. William Sweasy, an attorney, filed his complaint pro se on June 11, seeking to recover the unpaid rent together with a $5-per-day late payment penalty, attorney fees and court costs as provided for in the lease.

On June 23, Sweasy appeared in court and orally petitioned for an ex parte order of ne exeat on the ground that defendants had threatened to move themselves and their personal property out of State the following day. The court granted plaintiffs’ petition. The court further ordered defendants to post a cash bond in the amount of $2,000 and accepted plaintiffs’ “personal bond” in the amount of $500. Defendants resisted the ne exeat order by filing a motion to quash on grounds that the bond set for them was excessive and the bond set for plaintiffs was inadequate to cover defendants’ damages resulting from improper issuance of the order. Subsequently, on July 1, defendants paid plaintiffs $850, representing the June rent and late charges.

On July 2, the date set for a hearing on defendants’ motion to quash, plaintiffs filed a response and a motion to amend their complaint to add allegations of damages for repairs to an air-conditioning unit and a riding lawn mower. The court heard the pending motions and granted them both, but ordered that the bonds ordered in connection with the order of ne exeat be continued.

' On July 10, defendants answered the amended complaint and counterclaimed in two counts for damages for plaintiffs’ alleged breaches of the implied warranty of habitability and the duty to repair. Numerous mesne motions, responses, and plaintiffs’ second amended complaint were filed, and hearings were had. The matter was ultimately tried to the court in several settings between May 1988 and January 1989. Because of Judge Whitney’s imminent retirement, the court ordered that the matter would be concluded by 5 p.m. of January 20, 1989, the last date set for completion of the trial on the main complaint. Defendants’ motion for a continuance based on the unavailability of defendants’ lead counsel, Wayne Harvey, was denied that morning. Harvey returned to court after the lunch break; and, under the circumstances, moved for and was granted a voluntary dismissal of defendants’ countercomplaint. On January 30, the court entered its order finding that plaintiffs had met their burden of proof with respect to the June rent, mower repairs, and attorney fees and costs, for a total sum of $4,886.08. Plaintiffs’ claims for repairs to the air-conditioning unit and late payment penalties were denied. The court allowed a $1,400 offset for defendants’ $550 security deposit and the $850 paid on July 1, 1987, and entered judgment for plaintiffs in the amount of $3,486.08. It is from this order that defendants appeal.

The issues defendants present for our consideration are: (1) whether the trial court erred in entering judgment for plaintiffs’ attorney fees in the amount of $4,125; (2) whether the trial court’s award of damages for repair of the riding lawn mower was improper; and (3) whether the trial court erred in granting plaintiffs an order of ne exeat without requiring them to post a cash bond. In their appellees’ brief, plaintiffs raise additional issues charging error in the trial court’s failure to award late payment charges pursuant to the parties’ lease and in returning defendants’ $2,000 cash ne exeat bond.

Before addressing defendants’ arguments, we will dispose of the “cross-appeal.” We have repeatedly stated that this court’s jurisdiction will not be assumed and will be determined sua sponte even in the absence of a motion to dismiss. (See Trizzino v. Kline Brothers Co. (1982), 106 Ill. App. 3d 230, 435 N.E.2d 958.) In this case, the record on appeal contains no notice of cross-appeal as required by Supreme Court Rule 303 (107 Ill. 2d R. 303). Moreover, even if the notice were filed, we would reject the cross-appeal for plaintiffs’ failure to allude to any authority in support of their arguments. We have previously cautioned parties that this court will not accept the burden of the appellees’ argument and research. (Dillard v. Kean (1989), 183 Ill. App. 3d 28, 538 N.E.2d 914.) Accordingly, we dismiss the “cross-appeal.”

Next, we consider defendants’ argument concerning the trial court’s issuance of the ne exeat order. Defendants’ primary contention is that the $500 “personal bond” posted by plaintiffs in lieu of a cash bond was not sufficient to justify issuance of the extraordinary relief. (See Andersen v. Andersen (1942), 315 Ill. App. 380, 43 N.E.2d 176.) Ne exeat is a statutory remedy to prevent a defendant from leaving the jurisdiction of the court. It is authorized by virtue of Article 16 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 16—101 et seq.). Pursuant to section 16 — 101:

“Relief by ne exeat república may be granted, in cases where the debt or claim is not actually due, but exists fairly and bona fide in expectancy at the time of making application, and in cases where the claim is due; and it is not necessary, to authorize the granting of such relief by ne exeat, that the applicant show that his or her debt or claim is purely of an equitable character.” (Ill. Rev. Stat. 1987, ch. 110, par. 16—101.)

When the relief is granted, section 16 — 104 provides for the posting of bonds by both petitioner and respondent. With respect to the former, the section recites:

“The court shall *** require the *** petitioner, before a certified copy of the ne exeat order is issued by the clerk, bond with good and sufficient surety, in such sum as the court shall deem proper, conditioned that, the *** petitioner will prosecute the *** petition with effect, and will reimburse to the *** respondent such damages and costs as shall be wrongfully sustained by occasion of the granting of the relief by ne exeat.” Ill. Rev. Stat. 1987, ch. 110, par. 16—104.

Plaintiffs’ petition in this case alleged the nonpayment of the June rent and defendants’ imminent move out of the court’s jurisdiction, but failed to allege that plaintiffs held defendants’ security deposit in the amount of $550 or that plaintiff was claiming any damages other than the $5-per-day late payment penalty and attorney fees related to the previously filed complaint. Plaintiffs’ original form complaint then on file alleged the same damages, but included a demand for court costs. Significantly, in the space provided for credits and setoffs, the original complaint recites “none.”

It was not until defendants filed their first motion to quash the ne exeat order that the security deposit was brought to the court’s attention. That was on June 24, 1987. It was not until July 2, the date set for a hearing on defendants’ motion to quash, that plaintiffs filed their first amended complaint alleging damages to the air-conditioner and the riding lawm mower.

Under these circumstances, the trial court’s initial decision to grant plaintiffs’ petition for the ne exeat order would appear proper. However, defendants correctly point out that the ne exeat statute does not give the court discretion to waive the ne exeat petitioner’s obligation to post “bond with good and sufficient surety, in such sum as the court shall deem proper, conditioned that the *** petitioner *** will reimburse to the *** respondent such damages and costs as shall be wrongfully sustained by occasion of the granting of the relief by ne exeat.” (See Andersen, 315 Ill. App. 380, 43 N.E.2d 176.) Plaintiffs have presented no authority in support of their argument that an attorney’s status should exempt him from the bond requirement. On similar facts, the Andersen court reasoned that “[h]ad the legislature intended to vest the court with a discretion to excuse the plaintiff from giving a bond with sufficient surety, it would have manifested such intention by appropriate language. In Section [4], however, the legislature has clearly stated that the court shall take or cause to be taken of the plaintiff before the [order] shall issue, a bond with good and sufficient surety.” (315 Ill. App. at 388-89, 43 N.E.2d at 180.) The court specifically ruled that the plaintiff Andersen’s “individual bond” in the amount of $100 was not even a “pretense of complying with the statute.” 315 Ill. App. at 389, 43 N.E.2d at 180.

Likewise, in this case, plaintiffs’ $500 “personal bond” cannot be said to satisfy the statutory bond requirement- As the trial court ultimately acknowledged, the ne exeat order was improperly issued. The trial court properly quashed the ne exeat order and returned defendants’ $2,000 cash bond to them prior to the entry of judgment. However, as to this issue defendants have requested no relief in this court other than a reversal of the court’s initial granting of the ne ex-eat order; therefore, a remandment on this ground will not be ordered.

We also find that defendants’ challenge to the trial court’s award of $90.98 to plaintiffs for defendants’ failure to maintain and repair the riding lawn mower must fail. In this regard, defendants’ primary contention is that the parties’ lease agreement provided for the lessees’ maintenance of a “Toro motorized lawn tractor,” and the only lawn tractor on the leased premises was a John Deere. The trial court heard evidence supporting plaintiffs’ theory that the lease’s reference to a Toro model was a mere misnomer and that the damage to the mower for which plaintiffs had expended their own money for repairs had occurred during the leasehold period. This evidence was not rebutted in the trial court. Defendants’ argument to the effect that the covenant to “maintain” does not include an agreement to “repair” is without merit. Therefore, we find that the trial court’s factual findings are not contrary to the manifest weight of the evidence and will be sustained on appeal.

Lastly, we have considered defendants’ issue concerning the propriety of the trial court’s award of $4,125 in attorney fees, representing 51 hours expended by William Sweasy in pursuit of this action. We have previously alluded to the fact that the pleadings before the court at the time plaintiffs petitioned for a ne exeat order were not entirely accurate. Most significantly, plaintiffs did not allege defendants’ entitlement to credit for their $550 security deposit or their July 1, 1987, check for $850 until plaintiffs filed their second amended complaint on November 8, 1988. The original and first amended complaints falsely indicated that no offset would apply against plaintiffs’ claimed damages. At a minimum, plaintiffs were aware that defendants were entitled to a $550 offset at the time of the filing of these complaints. Had this fact been disclosed in plaintiffs’ initial complaint, we have no doubt that the trial court would have refused ne exeat relief. Under these circumstances, we hold that plaintiffs are not entitled to any fees for Mr. Sweasy’s time in pursuing and defending the ne exeat order.

Moreover, because plaintiffs’ evidence of damages for maintenance of the air-conditioning unit manifestly demonstrated to the court’s satisfaction that the unit in question was old and beyond repair, plaintiffs are not entitled to recover attorney fees for time expended in connection with that claim. Finally, the trial court appropriately ruled that plaintiffs were not entitled to relief on their claim for late penalty payments, inasmuch as the amount defendants owed pursuant to the lease was a matter of dispute as of June 1,1987.

In sum, plaintiffs’ only supportable claims were for the June 1987 rent of $550, $90.98 for the lawn mower repairs, and for attorney fees and court costs expended in pursuit of these claims. Since defendants had paid plaintiffs a total of $1,400 towards their debt by July 1, 1987, plaintiffs’ pursuit of this action beyond that date represents a needless extension of baseless claims for which no attorney fees should have been awarded. Accordingly, plaintiffs’ award for attorney fees is hereby reduced from $4,125 for 51 hours to $247.50 for 3.3 hours. Plaintiffs’ gross award before offset is reduced to $1,008.58; and, applying their $1,400 credit, defendants are entitled to a refund of $391.42.

The judgment of the circuit court of Peoria County is affirmed in part, reversed in part, and modified in part. The cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; modified and remanded.

SCOTT and WOMBACHER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    LAKEHEAD PIPE LINE COMPANY, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0726
    Opinion filed September 29, 1989.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rita M. Novak, Assistant Attorney General, of Chicago, of counsel).
    J. Robert Barr, of Sidley & Austin, of Chicago, Thomas J. Phillips, of Milwaukee, Wisconsin, and Walter Hellerstein, of University of Georgia Law School, of Athens, Georgia (Roger C. Minaban and Michael J. Collard, both of Minaban & Peterson, S.C., of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows reversal of the administrative decision of the Illinois Department of Revenue denying plaintiff corporate income tax refunds for years 1973 through 1977, inclusive.

We reverse.

Lakehead Pipe Line Company, Inc. (Lakehead), is a Delaware corporation with its principal office located in Superior, Wisconsin. Lake-head is wholly owned by Interprovincial Pipe Line, Ltd. (Interprovincial), a Canadian corporation. Lakehead owns and operates, as an interstate and foreign common carrier subject to Federal regulation, a pipeline system which transports crude petroleum and other liquid hydrocarbons owned by others.

Lakehead began operations in 1950. At that time, Lakehead’s pipeline extended to North Dakota, Minnesota, and Wisconsin. In 1954, the pipeline system was extended into Michigan, and, in 1962, a branch line was constructed into New York. The portion of the pipeline directly at issue in this appeal was added in 1968 and extends from Superior, Wisconsin, through Illinois, to Griffith, Indiana. The length of pipeline in Illinois is 115.6 miles long. In 1969, the pipeline was extended from Griffith to Sarnia, Canada. The total length of Lakehead’s pipeline in the United States is 2,600 miles.

At all times pertinent to this appeal, section 304(d)(2) of the Illinois Income Tax Act (Act) (Ill. Rev. Stat. 1977, ch. 120, pars. 1—101 through 17—1701) provided:

“[B]usiness income derived from transportation by pipeline shall be apportioned to this State by multiplying such income by a fraction, the numerator of which is the revenue miles of the person in this State, and the denominator of which is the revenue miles of the person everywhere. For the purposes of this paragraph, a revenue mile is the transportation by pipeline of 1 barrel of oil *** the distance of 1 mile for a consideration.” (Ill. Rev. Stat. 1977, ch. 120, par. 3—304(d)(2).)

Section 304(e) further provided:

“If the allocation and apportionment provisions of subsections (a) through (d) do not fairly represent the extent of a person’s business activity in this State, the person may petition for, or the Director may require, in respect of all or any part of the person’s business activity, if reasonable:
(1) Separate accounting;
(2) The exclusion of any one or more factors;
(3) The inclusion of one or more additional factors which will fairly represent the person’s business activities in this State; or
(4) The employment of any other method to effectuate an equitable allocation and apportionment of the person’s business income.” Ill. Rev. Stat. 1977, ch. 120, par. 3—304(e) (now Ill. Rev. Stat. 1987, ch. 120, par. 3—304(f)).

In June of 1970, the Illinois Director of Revenue, pursuant to the alternative allocation provision of section 304(e), permitted Lakehead to apply a two-factor formula for apportioning Illinois corporate income tax instead of the statutory one-factor barrel mile apportionment formula of section 304(d). In addition to the number of barrel miles, the two-factor apportionment formula incorporated a property factor based on a ratio of the Illinois based assets used by Lakehead in its business in Illinois to the total used by Lakehead throughout its system. Lakehead had sought permission to use the two-factor formula for Illinois apportionment purposes because, at that time, it was using the two-factor formula in all other States in which it did business.

In 1973, the Wisconsin Department of Revenue required Lake-head to use a three-factor apportionment formula for corporate income tax purposes. In addition to the factors contained in the two-factor formula, the three-factor formula incorporated a factor for Lakehead’s payroll. Lakehead was required to apply the three-factor formula in Wisconsin retroactively to 1969.

Lakehead thereafter sought permission, in each State in which it did business, to apply the three-factor formula in order to achieve uniformity and to eliminate the possibility of double taxation. Commencing with the 1976 tax year, all States in which Lakehead did business, with the exception of Illinois, permitted Lakehead to use that apportionment formula.

From 1973 to 1977, Lakehead’s Illinois corporate income tax was computed using the two-factor formula.

In March of 1977, Lakehead initiated proceedings before the Illinois Department of Revenue (Department) to recover portions of taxes paid for calendar years 1973, 1974, 1975, 1976, and 1977. The refunds amounted to $17,370, $10,426, $19,813, $21,593, and $24,275, respectively, for the years at issue. Lakehead’s refund claims were based on the assertion that taxes for those years should have been calculated using the three-factor formula. When, after six months elapsed from the filing dates of the refund claims, the Department did not issue a notice allowing or denying the refunds, Lakehead’s claims were deemed denied by operation of section 909(e) (Ill. Rev. Stat. 1977, ch. 120, par. 9—909(e)) of the Act.

Lakehead subsequently filed timely written protests from denial of the refunds and sought a formal hearing before the Department. The hearing was held on June 27,1985, and May 14,1986.

At the hearing, the Department established its prima facie case through the admission into evidence of two lengthy stipulations of facts and attached exhibits. In support of its claims for refunds, Lake-head presented the testimony of Robert L. Nichols, its supervisor of taxes and accounting services, the relevant parts of which we summarize below.

Nichols testified that most of the crude oil received by Lakehead comes from the Canadian provinces of Alberta and Saskatchewan through Interprovincial’s pipeline system. That oil is transported to destinations in the United States through Lakehead’s pipeline system. Lakehead owns and operates approximately 40 pumping stations and numerous delivery points along the length of the pipeline. Two of the pumping stations and two of the delivery points are located in Illinois.

Lakehead’s computers start and stop electrical units and open and close valves within Lakehead’s pipeline system. The main-frame computer is located at Interprovincial’s headquarters in Edmonton, Alberta, although Lakehead has similar units located in Superior, Wisconsin, and in Sarnia, Ontario. Lakehead also owns and operates “working” tanks in Minnesota, Wisconsin, and Indiana for mixing particular types of oil for delivery.

Nichols testified employees were needed to operate the pumping stations, although occasionally one employee might maintain and operate more than one station. Each of the stations has an assigned electrical supervisor. Lakehead employed “deliverymen” to operate the pipeline’s valves and meters. Nichols explained that because Lakehead operated only two delivery points in Illinois, Lakehead needed fewer “deliverymen” in the State than other companies. Lakehead also employed heavy equipment operators and nine pipeline maintenance crews, eight employees per crew, throughout its system. Maintenance crews were located in Minnesota, Wisconsin, Michigan, and Indiana. The maintenance crews located in Fort Atkinson, Wisconsin, and Griffith, Indiana, both service Illinois.

In addition to operations associated with the physical movement of oil along the pipeline, Nichols stated Lakehead’s operating headquarters were in Superior, Wisconsin. In 1977, Lakehead had 60 employees in that office’s administrative, accounting, purchasing, engineering, legal, and employees’ relations departments. Lakehead also employed a computer technician for its unit in Wisconsin. In addition to its Wisconsin offices, Lakehead maintained offices in Minnesota and Michigan.

Pursuant to an exhibit prepared for the hearing, Nichols established that Lakehead had the following number of employees in its operations, and in Illinois specifically, at December 31 of the years at issue:

NUMBER OF EMPLOYEES
YEAR EMPLOYEES IN ILLINOIS
1973 224 3
1974 339 3
1975 313 2
1976 318 2
1977 308 1

Another exhibit indicated the apportionment percentages associated with Lakehead’s business activity in Illinois for the years at issue under each of the different formulas:

1973 1974 1975 1976 1977
One-factor % 6.4727 6.0861 5.8666 5.8959 4.1219
Two-factor % 7.0289 6.7226 6.5823 6.4687 5.4803
Three-factor % 5.0275 4.8010 4.6287 4.5149 3.7739

On January 9, 1987, the Department issued its decision denying Lakehead’s request for refunds. The Department determined that Lakehead was required to use the statutory one-factor barrel mile apportionment formula of section 304(d) of the Act, concluding Lake-head failed to meet its burden of showing that it was entitled to elect an alternative formula. The Department further concluded that it had been error to permit Lakehead to use the two-factor formula to apportion its taxes and determined that Lakehead was entitled to refunds for taxes paid under that formula. The Department awarded Lakehead refunds resulting from application of the one-factor formula in the amounts of $4,833 for 1973, $3,482 for 1974, $7,311 for 1975, $6,865 for 1976, and $19,277 for 1977.

Lakehead filed its complaint for administrative review of the Department’s decision on February 6, 1987. Following a hearing on Lakehead’s complaint, the circuit court reversed the Department’s decision. In a “Memorandum of Decision,” the circuit court ruled that Lakehead had met its burden of showing application of the one-factor barrel mile apportionment formula led to a grossly distorted result with reference to property use and employee activity. The court concluded Lakehead was entitled to use the three-factor formula to apportion taxes in Illinois for years 1973 to 1977 and granted Lake-head’s refund claims. An order was entered on February 4, 1988, incorporating the memorandum.

The Department subsequently filed a motion for “Partial Reconsideration and Modification.” In its motion, the Department argued that the administrative decision was limited in scope to the fairness of application of the one-factor formula. The Department asserted that the record had not been developed regarding the type of alternative formula that should be used in apportioning Lakehead’s taxes and urged the court to remand the matter for a hearing on that issue.

That motion was also denied by the circuit court in an order dated February 4, 1988. In its order, the court noted that the issue of whether an additional hearing to consider the appropriateness of the three-factor formula had not been raised either in the Department’s brief or during arguments before the court. Further, the court observed, the record was “permeated with the three-factor formula contention.” The court concluded that after Lakehead rebutted the Department’s prima facie case, the Department failed to proceed with evidence regarding whether the three-factor formula was inappropriate and that the Department’s failure at that time to raise the issue precluded a second opportunity to do so. This appeal followed.

Opinion

Generally, section 304(a) of the Act directs that multistate corporations doing business in Illinois must apply a three-factor apportionment formula, based on property, payroll, and sales when allocating business income to this State. (General Telephone Co. v. Johnson (1984), 103 Ill. 2d 363, 469 N.E.2d 1067.) However, as noted above, our legislature has determined that a different apportionment formula should apply to multistate corporations providing transportation services including, specifically, oil pipeline companies such as Lakehead. Under section 304(d), that allocation is to be computed according to a one-factor formula based on barrel miles. (See Ill. Rev. Stat. 1977, ch. 120, par. 3—304(d).) Nevertheless, the legislature also provided a relief provision under section 304(e) of the Act such that, whére the statutory formulas, including that prescribed in section 304(d), do not “fairly represent” business activity in Illinois, adjustments in the statutory formulas may be made. See Ill. Rev. Stat. 1977, ch. 120, par. 3—304(e).

Put simply, the issue before us is whether the Department’s conclusion that the statutory one-factor barrel mile formula of section 304(d) was proper as fairly representing the business activity of Lake-head in Illinois for the years at issue or whether an alternative allocation formula under section 304(e) was justified.

In assessing whether the statutory barrel mile formula should have been applied, we are guided by the Illinois Administrative Code (Administrative Code) (86 Ill. Adm. Code §§100.2000 through 100.9900 (1985)), provisions of which implement and are authorized by the Act. (See Ill. Rev. Stat. 1985, ch. 120, par. 14—1401.) Section 100.3700(a)(4) of the Administrative Code incorporates relevant constitutional considerations in assessing the propriety of an allocation formula and specifically provides, regarding operation of subsection (e) of section 304 of the Act:

“This subsection permits a departure from the required methods applicable under *** Section 304(a) through (d) *** only where such methods do not accurately and fairly reflect business activity in Illinois. An alternative apportionment method under this subsection may not be invoked, either by the Director or by a tax payer, merely because it reaches a different apportionment percentage than the regularly required formula. However, if the application of the statutory formula will lead to a grossly distorted result in a particular case, a fair and accurate alternative method is appropriate. (See Norfolk & Western Railway Co. v. State Tax Commission[,] 390 U.S. 317[,] 88 S. Ct. 995 (1968).) The party (the Director or the taxpayer) seeking to utilize an alternative apportionment method has the burden of showing by clear and cogent evidence that the statutory formula would result in the taxation of extraterritorial values. (See Butler Bros. v. McColgan[,] 315 U.S. 501, 625, cf. 701 (1942).) The burden will be met only if the statutory formula is demonstrated to operate unreasonably and arbitrarily in attributing to Illinois a percentage of income which is out of all proportion to the business transacted in this State. (See Hans Rees’ Sons, Inc. v. North Carolina ex rel[.] Maxwell, 283 U.S. 123, 51 S. Ct. 385 (1931).) Finally, the party seeking to use an alternative apportionment formula must prove that such method fairly and accurately apportions income to Illinois based upon business activity in this [S]tate.” (Emphasis added.) 86 Ill. Adm. Code §100.3700(a)(4) (1985).

The record reveals that the primary business conducted by Lake-head in Illinois was limited primarily to the flow of oil over the 115.6 miles of pipeline located here. The functions most vital to the pipeline were performed in Edmonton, Alberta. Lakehead’s main computer for facilitating the oil flow throughout the pipeline is located there. Lake-head maintained no “working” tanks or maintenance crews in Illinois. Nor did Lakehead maintain a district office in Illinois. Further, as summarized in the table above, Lakehead never employed more than three people in Illinois during any one of the years at issue.

In its brief on appeal, Lakehead concedes that the one-factor formula would fairly represent Lakehead’s business activity if the only form of Lakehead’s activity in Illinois consisted of barrels of oil moving through miles of pipeline. However, Lakehead argues, to the extent that there are other forms of business activity in Illinois, the one-factor barrel mile formula would represent Lakehead’s business activity in this State only if other forms of activity are “roughly proportional” to the number of barrel miles in each State. Lakehead proceeds to argue that in measuring Lakehead’s business activity we must consider services performed by Lakehead through its employees at pumping stations, receipt and delivery locations, working tanks, and at offices where the pipeline system is managed.

We agree that Lakehead’s use of capital assets and employee activity are important to determining the extent of Lakehead’s total business activity and are not reflected in the one-factor barrel mile formula of section 304(d) of the Act. However, in determining whether an alternative allocation formula should be applied, those considerations become relevant only to the extent that application of the one-factor formula, to the exclusion of those considerations, “grossly distorts” Lakehead’s business activity in Illinois.

As indicated above, Lakehead had, besides the pipeline itself, limited capital assets in Illinois, consisting of two delivery points and two pumping stations. The number of permanent employees in Illinois during any of the years in issue was little more than 1% of the total employee activity of the corporation.

Further, after comparing the apportionment percentages associated with Lakehead’s business activity under the three different formulas for each year in question, we cannot conclude that application of the statutory barrel mile formula operated to unreasonably and arbitrarily attribute to Illinois a percentage of income out of all proportion to the business transacted in this State. The apportionment percentages represented by the one-factor barrel mile formula actually fall within the range of apportionment percentages represented by the two- and three-factor formulas. The differences in the apportionment percentages between the one-factor, and three-factor formulas over the years in issue are as follows:

1973 1974 1975 1976 1977
1.4452 1.2851 1.2379 1.3810 0.3480

We do not believe that range of apportionment percentage differences constitutes the type of gross distortion which would justify application of an alternative apportionment formula under section 304(e).

Lakehead contends in its brief on appeal that a taxpayer is entitled to an alternative apportionment formula under section 304(e) “whenever the originally imposed formula produces any distortion of business activity” (emphasis in original), citing GTE Automatic Electric, Inc. v. Allphin (1977), 68 Ill. 2d 326, 369 N.E.2d 841, as authority for that proposition.

Pertinent here, in GTE, the supreme court considered whether section 304(e) of the Act could be properly used to include a particular factor in the sales factor under section 304(a) or whether section 304(e) could be used only to challenge the overall method of apportionment under section 304(a). Specifically at issue was whether the Department, pursuant to section 304(e), could command plaintiff to include “direct” sales (sales of tangible personal property to purchasers in States in which plaintiff was not taxable, shipped by suppliers from inventory either within Illinois or in a State in which plaintiff was not taxable) in the numerator of the sales factor of section 304(a).

The court observed that the sales factor of section 304(a), by its terms, did not apply to “direct” sales in which plaintiff was not taxable in either the State of origin or destination but concluded section 304(e) could be used to supply such factor. (GTE, 68 Ill. 2d at 339, 369 N.E.2d at 140.) Inclusion of that factor, the court reasoned, was suggested by a clear legislative intent to apportion business income of multistate corporations among taxing jurisdictions so as to avoid either an overlap or a gap in taxation. GTE, 68 Ill. 2d at 339, 369 N.E.2d at 140.

Lakehead’s assertion that GTE can be read to permit application of an alternative apportionment formula pursuant to section 304(e) under circumstances other than that set out in section 100.3700 of the Administrative Code cannot be supported. First, in GTE, the supreme court was concerned only with whether or not an additional factor could be added, pursuant to section 304(e), to the general sales factor incorporated in section 304(a). The court did not directly address the circumstances under which operation of section 304(e) could be used in place of the statutorily imposed allocation formulas of sections 304(a) through (d). Further, nothing in the GTE opinion suggests the court, by acknowledging the intent to avoid overlap or gap in apportionment, was department from standards, as set out in section 100.3700 of the Administrative Code, for determining when a statutory allocation formula is proper.

Lakehead’s position would seemingly justify operation of section 304(e) whenever the allocation formula applied in Hlinois differed from that applied in other States where some aspect of a multistate’s business activity in Hlinois was left unaccounted for, resulting in some distortion in allocation. Clearly, that is not the applicable standard. While we understand the goal of avoiding overlap or gap in apportioning taxes for multistate corporations, we are equally aware our legislature is empowered to determine the allocation scheme to be applied and that the chosen formula must be applied unless it unreasonably and arbitrarily attributed to Illinois a percentage of income out of all proportion to the business transacted.

Because we find no such arbitrariness under application of the one-factor barrel mile formula to Lakehead’s particular situation, we must reverse the judgment of the circuit court.

Reversed.

PINCHAM and COCCIA, JJ., concur.

      The term “barrel mile(s)” is used in place of the statutory term “revenue mile(s)” in the record and by the parties in their briefs on appeal. For purposes of this opinion, we also refer to the movement of one barrel of oil over the distance of one mile as a “barrel mile.”

      To avoid confusion, throughout the opinion we refer to the alternative allocation provision of section 304 of the Act by its codification in subsection (e).

      Lakehead timely filed Illinois corporate income taxes for all years at issue. For calendar years 1973, 1974, and 1975, the Illinois Department of Revenue permitted Lakehead to compute taxes using the two-factor formula. For calendar years 1976 and 1977, Lakehead computed taxes using the three-factor formula but, following an audit, the Department deemed use of the three-factor formula an error and assessed deficiencies calculated upon the two-factor formula. Lakehead paid the deficiencies with interest.


author: JUSTICE CAMPBELL

text:
    SENIOR HOUSING, INC., Plaintiff-Appellant, v. NAKAWATASE, RUTKOWSKI, WYNS & YI, INC., n/k/a Nakawatase, Wyns, & Associates, Inc., Defendants-Appellees.
    First District (1st Division)
    No. 1—87—3571
    Opinion filed October 30, 1989.
    Rehearing denied January 22, 1990.

      William J. O’Connor, of Zukowski, Rogers, Flood, McArdle & O’Connor, and Bogen, Rosenblum & Associates, both of Chicago (Ronald Rosenblum, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, James M. Hoey, and Peter E. Kanaris, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Senior Housing, Inc., appeals from the dismissal of counts I and II of its lawsuit against defendant, Nakawatase, Rutkowski, Wyns & Yi, Inc., an architectural and engineering firm. Count I alleged that Nakawatase had negligently performed its contractual duties to plaintiff, and count II alleged that Nakawatase had breached the contract between the parties. The trial court granted Nakawatase’s motion to dismiss on the ground that plaintiff had failed to timely file its claim within two years of the date the cause of action accrued. On appeal, plaintiff contends that: (1) the statute of limitations had not expired prior to plaintiff’s filing of its complaint and (2) Nakawatase is estopped by its conduct from asserting the statute of limitations as a defense to plaintiff’s claim. For the following reasons, we affirm in part, reverse in part and remand the cause for further proceedings.

The pleadings set forth the following. On December 21, 1981, plaintiff and Nakawatase entered into a contract (the Contract) for the development of a multi-unit residential building for the elderly, consisting of 59 one-bedroom units for the elderly and one two-bedroom living unit for the manager. The Contract stated that Nakawatase was to “develop all concept, schematic, design/development and construction documents for the project, normal submittals to DHUD and *** provide construction observation during the construction of the project.” The Contract further provided:

“1.4.9 The Architect shall be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder by both the Owner and Contractor, and shall render written decisions on all claims, disputes and other matters in question between the Owner and the Contractor.”

In addition to other provisions specifying the responsibilities of the parties, the Contract stated:

“8.2 As between the parties to this Agreement: as to all acts or failures to act by either party to this Agreement, any applicable statute of limitation shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant Date of Substantial Completion of the Work, and as to any acts or failures to act occurring after the relevant Date of Substantial Completion, not later than the date of issuance of the final Certificate for Payment.”

The parties agree that the housing center was substantially completed on September 1,1983.

Sometime in early 1984, plaintiff notified Nakawatase and the contractor that there were certain moisture problems resulting in numerous water and air leaks at windows and heat/vent/air-conditioning units every time it rained or the wind blew. Nakawatase and the contractor conducted an on-site inspection of the building and in a letter to plaintiff dated July 6, 1984, Nakawatase advised plaintiff that the contractor had been “instructed to re-caulk the windows in accordance with the drawings so that the joint will be caulked above and below the flashing and adhered to the shelf angle. This has been completed in the 04 and 06 bays on all floors and is being watched to determine if this has corrected the problem before re-caulking the entire building. The Contractor has promised to repair the entire building once it is determined that this course of action will correct the problem.”

Subsequently, in January 1985, plaintiff notified Nakawatase and the contractor that the recaulking had not worked and the windows were leaking. A meeting was then held in late January at which Nakawatase, plaintiff and the window subcontractor discussed the failure of the recaulking to prevent water and air infiltration at the windows. It was discovered that the caulking had covered necessary weep holes above the windows which facilitate the relief of water build-up behind the walls. The window subcontractor agreed to correct the problems. Air infiltration problems were also to be corrected. During spring 1985, the contractor obtained the services of a subcontractor to do remedial caulking and to install plastic tube weeps. In addition, a masonry subcontractor applied a water repellant to a section of the building. Subsequently, plaintiff asked Nakawatase to prepare bids for the application of a water repellant sealer to the entire building. Nakawatase submitted a list of contractors to plaintiff, and bids were sent out to five contractors. The bids were opened in April 1986. The record does not indicate whether this work was ever done. In mid-April 1986, when the leakage problems still persisted, plaintiff commissioned an independent masonry consultant to inspect the housing center and to determine the causes of water and wind penetration. The consultant advised plaintiff, inter alia:

“Detail 1, A — 17 of the original drawings will not allow water drainage. The detail as shown seals the forward edge of the flashing shown in the sealant bead and no weep holes or wicks are shown. ***
It is my opinion that if the specified and detailed flashings are installed, then water is circumventing the flashings through punctures, dry laps, lack of end dams, etc. and entering apartment units particularly at window heads. If the remedial repairs stop water penetration problems, you may not wish to pursue this theory. If you wish to investigate further it will be necessary to open masonry walls for inspection purposes.”

As a result of the consultant’s report, plaintiff commissioned additional work to correct the problems, the cost for which totalled $11,120. On September 25, 1986, plaintiff demanded payment from Nakawatase and the contractor for the repair costs. When they asked for additional time to examine the report and the bills, plaintiff granted it to them. However, neither the contractor nor Nakawatase responded to plaintiff’s demand. As a result, plaintiff filed its cause of action on March 17, 1987, against Nakawatase and the contractor.

Count I of the complaint alleges that Nakawatase had acted negligently, and count II alleges that Nakawatase breached the Contract. Counts III and IV alleged negligence and breach of contract, respectively, against the contractor. Count V alleges that the insurance company which issued a performance bond to the contractor is liable as surety for the contractor’s performance of the Contract.

In response, Nakawatase filed a motion to dismiss on the grounds that the complaint was not filed within the applicable two-year limitation periods. Pursuant to paragraph 8.2 of the Contract, any cause of action accrued on the date of substantial completion, which the parties agreed was September 1, 1983. Thus, according to Nakawatase, the complaint should have been filed by September 1, 1985. Notwithstanding the contractual provision which established the accrual date, Nakawatase also argued that pursuant to section 21.3 of “An Act in regard to limitations” (Ill. Rev. Stat. 1981, ch. 83, par. 22.3), the applicable statute of limitations ■ in effect at the time the Contract was executed, Nakawatase had to commence its action within two years from the time plaintiff knew or reasonably should have known of the act or omission. Nakawatase argued that the discovery date was sometime during or prior to July 1984 when Nakawatase had conducted the initial on-site inspection as the result of plaintiff’s complaints of air and water leakage. The trial court granted Nakawatase’s motion to dismiss and plaintiff appealed.

Prior to our discussion of the issues raised on appeal, we note that, although plaintiff’s notice of appeal indicated that it was appealing from the trial court’s dismissal of both count I and count II of its complaint, during oral argument, counsel for plaintiff expressly abandoned its argument as to count I (negligence) by informing this court and opposing counsel that it would not be proceeding on that count. Generally, an appeal will be considered as abandoned where the appellant fails to prosecute the appeal or does some act inconsistent with its prosecution. (See McCottrell v. Benson (1961), 32 Ill. App. 2d 367, 178 N.E.2d 144.) Accordingly, we find that plaintiff has abandoned count I on appeal. Therefore, the following discussion applies only to count II, which sounds in breach of contract.

The threshhold issue in the present case is whether Nakawatase is estopped by its actions from asserting the statute of limitations as a bar to the action. If Nakawatase is estopped, the issue as to whether the statute of limitations had expired prior to plaintiff’s filing of its complaint is moot. Plaintiff argues that Nakawatase’s conduct in both investigating the leakage and attempting to correct the problem by instructing the contractor as to what remedial steps to take estops Nakawatase from asserting the statute of limitations as a defense. In response, Nakawatase argues that plaintiff has waived the estoppel argument by failing to plead estoppel in the original complaint. Further, even if the estoppel argument is not waived, Nakawatase argues that its actions regarding the water leakage and wind penetration problems consisted of mere investigation which does not provide sufficient grounds for estoppel.

In our view, Nakawatase’s waiver argument is unpersuasive. As support for its contention that plaintiff was required to plead estoppel in its complaint, Nakawatase relies on People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 524 N.E.2d 642, Hartford Accident & Indemnity Co. v. D.F. Bast, Inc. (1977), 56 Ill. App. 3d 960, 372 N.E.2d 829, and Johnson v. Johnson (1975), 26 Ill. App. 3d 64, 324 N.E.2d 450. None of these cases support Nakawatase’s argument. Instead, the cases state that neither party can argue estoppel for the first time on appeal. That is not the situation in the present case. Plaintiff pled estoppel in its answer to Nakawatase’s motion to dismiss. To require plaintiff to plead estoppel in the complaint before the statute of limitations has been raised is illogical. Once the defense was raised in the motion to dismiss, estoppel was argued. Thus, although it was not raised in the complaint, we find that it was properly raised in the pleadings below.

It is well established that to invoke the doctrine of equitable estoppel, it is not necessary to establish that the defendant intentionally misled or deceived the plaintiff, or even that the defendant intended to induce delay. The only requirements are that plaintiff reasonably relied on the defendant’s conduct in forbearing suit (Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869) and that plaintiff suffered a detriment as a result of his reliance upon the words or conduct of the defendant. AXIA, Inc. v. I.C. Harbour Construction Co. (1986), 150 Ill. App. 3d 645, 501 N.E.2d 1339.

In support of its position that Nakawatase’s conduct acted to estop it from asserting the statute of limitations as a defense, plaintiff relies on AXIA, Inc. v. I.C. Harbour Construction Co. (1986), 150 Ill. App. 3d 645, 501 N.E.2d 1339. In AXIA, plaintiff contracted with Harbour, a contractor, on June 10, 1977, for the construction of a three-story building. The contract provided that the contractor would correct any defects appearing within one year from the date of completion. The building was completed in fall 1978, and shortly thereafter, it began to leak extensively whenever it rained and efflorescence appeared on the outside bricks. Plaintiff notified Harbour, and Harbour attempted to correct the problems in 1979, 1980 and 1982, but the problems continued. Finally, in July 1983, plaintiff employed a consulting firm to investigate the problem. The firm’s report indicated design and construction deficiencies. Harbour failed to do the corrective work, and 10 months later, plaintiff filed its complaint. The trial court dismissed the complaint as being time barred.

On appeal, the reviewing court held that, although plaintiff had not timely filed its complaint, Harbour’s conduct was sufficient to establish an estoppel to prevent Harbour from shielding itself with the statute of limitations. In reaching its decision, the AXIA court noted that during the four-year period between the first leakage problems and the filing of the compliant, Harbour had inspected the premises, performed tests and performed corrective work in apparent recognition of its contractual responsibilities. Further, during the limitations period, Harbour never disputed its responsibility. The AXIA court concluded that plaintiff’s reliance on Harbour’s conduct had the natural effect of forebearing legal action.

Nakawatase attempts to distinguish AXIA from the present situation by claiming that its conduct consisted of mere investigation and it never admitted to any further responsibility. In addition, Nakawatase asserts that the contract plainly stated that it was not required to make exhaustive inspections, was not responsible for construction techniques and was not responsible for the failure of any party to perform its contractual obligations.

Contrary to Nakawatase’s argument, the record indicates that it was responsible for and took responsibility to direct the repair work. In Nakawatase’s letter to plaintiff, dated July 6, 1984, Nakawatase indicated that it had “instructed” the contractor to recaulk and would then “watch to determine if this has corrected the problem.” Further, in Nakawatase’s interoffice memo dated January 28, 1985, regarding a meeting on the water infiltration problems, Nakawatase indicated that it would notify the contractor so that corrective measures could be taken. In addition, in a letter from Nakawatase to the contractor, dated February 7, 1985, Nakawatase instructed the contractor as to what remedial steps to take and when.

Furthermore, paragraph 1.4.9 of the Contract between plaintiff and Nakawatase states that Nakawatase is the interpreter of all contract documents and judge of performance by both the owner and the contractor and shall render written decisions on all disputes and endeavor to secure faithful performance. In addition, paragraph 1.4.3 of the Contract states that instructions to the contractor from the owner were to be forwarded through Nakawatase.

Accordingly, in our view, the facts indicate that Nakawatase did much more than merely investigate. Pursuant to the Contract, Nakawatase was the intermediary between plaintiff and the contractor, and, as did the defendant in AXIA, Nakawatase acted in “apparent acknowledgment of its responsibility under the contract.” (Axia, 150 Ill. App. 3d at 656.) Moreover, there is no evidence in the record of any denial of responsibility by Nakawatase until September 1986, when plaintiff demanded restitution from Nakawatase and the contractor for repairs made by outside contractors upon the recommendation of the consultant. Thus, we find that it was reasonable for plaintiff to have refrained from filing its lawsuit in reliance on Nakawatase’s representations that remedial measures would be taken, observed, and further corrected, if necessary. As a result of its reliance, plaintiff suffered the detriment of ongoing leakage problems and additional expenses with outside contractors. Our decision that Nakawatase is estopped by its actions from asserting the statute of limitations as a defense obviates the need to address the issue as to whether the statute of limitations had expired prior to plaintiff’s filing of its complaint.

For the aforementioned reasons, we affirm that part of the trial court’s judgment that dismissed count I (negligence), reverse that part of the judgment that dismissed count II (contract), and remand the cause for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.

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

      As a further indication that plaintiff has abandoned count I (negligence) on appeal, in its reply brief, plaintiff failed to address Nakawatase’s alternative argument that count I was barred by the economic loss doctrine. Specifically, Nakawatase argued that plaintiff’s failure to allege other than economic damages in its negligence count bars recovery in tort. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443; People ex rel. Skinner v. Graham (1988), 170 Ill. App. 3d 417, 524 N.E.2d 642.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMETT GENTRY, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—2913
    Opinion filed December 1, 1989.
    Rehearing denied January 22, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Christine Perille, Special Assistant State’s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant, Emmett Gentry, was convicted of possessing a stolen motor vehicle pursuant to section 4— 103 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 4—103) and was sentenced to 5V2 years’ imprisonment. Defendant contends that conviction must be reversed because section 4 — 103 of the Code is unconstitutional as violative of due process guarantees.

We conclude it is not and affirm the judgment of the circuit court.

Opinion

Section 4 — 103 of the Code provides, in pertinent part, in subsection (a):

“It is a violation of this chapter for:
(1) A person not entitled to the possession of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles *** are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, uniform invoices *** and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle *** is stolen or converted, regardless of whether the date on which such vehicle *** was stolen is recent or remote[.]” (Ill. Rev. Stat. 1987, ch. 951/2, par. 4-103(a)(1).)

Subsection (b) further provides:

“A person convicted of a violation of this Section shall be guilty of a Class 2 felony.” Ill. Rev. Stat. 1987, ch. 951/2, par. 4—103(b).

Although defendant’s opening brief presents arguments which reach to the constitutionality of both subsections above, we need not address the merits of defendant’s contentions with respect to subsection (b) because identical challenges have recently been rejected by our supreme court in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221. In Bryant, the supreme court held section 4 — 103(b) did not violate due process guarantees either because it punished possessors of stolen motor vehicles more severely than organized motor vehicle thieves or because it provided for a more severe punishment than theft. Bryant, 128 Ill. 2d at 455-56, 458, 539 N.E.2d at 1224-25, 1226.

Defendant first argues, with respect to subsection (a), that the statute violates due process guarantees because it is not reasonably related to the legitimate purpose of preventing vehicle theft or “chop shop” operations, the acknowledged purpose of the section. Specifically, Gentry argues the section punishes every possessor of a stolen motor vehicle who has knowledge the vehicle was stolen without regard to when that knowledge was acquired or how innocently possession was obtained. Defendant directs our attention to People v. Wick (1985), 107 Ill. 2d 62, 481 N.E.2d 676.

In Wick, the supreme court held that section 20 — 1.1 of the Criminal Code of 1961, creating the offense of aggravated arson, violated due process guarantees. Section 20 — 1.1 provided:

“A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and *** (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion.” (Ill. Rev. Stat. 1981, ch. 38, par. 20—1.1.)

In assessing whether the statute satisfied due process guarantees, the court observed the relevant test involved “identifying the public interest that the statute [was] intended to protect, examining whether the statute ‘[bore] a reasonable relationship’ to that interest, and determining whether the method used to protect or further that interest [was] ‘reasonable.’ ” Wick, 107 Ill. 2d at 66, 481 N.E.2d at 678.

The court determined that because the offense did not require an unlawful purpose in setting a fire, the statute as written was excessively broad, including within its reach those who might innocently set fires in which firemen were injured. (Wick, 107 Ill. 2d at 66, 481 N.E.2d at 678.) As an example, the court noted that a farmer who innocently set fire to a dilapidated barn to clear the site for a new one would be liable for a Class X penalty under the statute if a fireman standing by was injured. (Wick, 107 Ill. 2d at 66, 481 N.E.2d at 678.) Therefore, the court concluded the statute bore no reasonable relationship to its intended purpose: providing a severe penalty for arsonists whose culpable conduct injured firemen or policemen. (Wick, 107 Ill. 2d at 66-67, 481 N.E.2d at 678-79.) Moreover, the court observed, because no culpable intent was included in the statute, the statute provided no reasonable means to effectuate its purpose. Wick, 107 Ill. 2d at 66-67, 481 N.E.2d at 678-79.

This court has previously recognized, in determining that possession of a stolen motor vehicle was not a lesser included offense of theft, that section 4 — 103 was intended to “combat the problems created by ‘chop shops,’ organized crime and full-time car thieves.” (People v. Carlyle (1987), 159 Ill. App. 3d 964, 968, 513 N.E.2d 61, 63.) We find the statute reasonably related to that purpose in two ways. First, the statute works directly against activities involved in the procurement of stolen motor vehicles and in “chop shop” operations by making it an offense to conceal, sell, dispose, or transfer a stolen or converted motor vehicle. The statute is further related to its intended purpose in a reasonable way by including within its reach any individual who receives or possesses a stolen or converted motor vehicle, knowing it to be stolen, thus eliminating the market necessary to support the activity of car thieves and “chop shop” operators.

Gentry argues the second manner in which section 4 — 103 operates, eliminating the market supporting the undesired activities, is too indirect a means to effectuate the statute’s purpose. Gentry argues the goal of preventing automobile theft and “chop shop” operations can be achieved more directly by prohibiting the sale or purchase of motor vehicles without document of title.

Gentry’s argument, even if accepted, provides no basis upon which to conclude section 4 — 103 violates due process guarantees. The standard by which section 4 — 103 must be measured to determine whether it complies with due process guarantees is whether it is reasonably designed to effectuate the purposes of the statute. (See People v. Rollins (1982), 108 Ill. App. 3d 480, 438 N.E.2d 1322.) Because we have concluded section 4 — 103 is reasonably designed to remedy the evils of automobile theft and “chop shop” operations, it is immaterial whether it is the most direct means to effectuate those ends.

We also note section 4 — 103 does not suffer from the same constitutional deficiency regarding lack of culpable intent as did the aggravated arson statute in Wick. Unlike the statute in Wick, section 4 — 103, by including within its reach only those possessors of stolen motor vehicles having knowledge of the fact that the vehicle was stolen, contains the requisite aspect of culpable conduct to effectuate the purpose of the statute.

Last, Gentry contends section 4 — 103 is unconstitutional because it purportedly contains conflicting mental states, thus denying citizens fair notice of the conduct prohibited. Specifically, defendant points out that although the statute requires an individual’s knowledge that a particular vehicle was stolen, the statute also embodies a constructive knowledge provision. Defendant directs the court’s attention to People v. Monroe (1987), 118 Ill. 2d 298, 515 N.E.2d 42, arguing that that case, in which the supreme court concluded the Drug Paraphernalia Control Act (Ill. Rev. Stat. 1985, ch. 561/2, pars. 2101 through 2107) was unconstitutional, is analogous.

In People v. Hall (1989), 187 Ill. App. 3d 1084, 543 N.E.2d 1038, the third division of this court analyzed the mental state requirements under section 4 — 103 within the context of the supreme court’s decision in Monroe. The third division concluded that, unlike the statute in Monroe, the constructive knowledge provision contained in section 4 — 103 does not present a mental state in conflict with the knowledge requirement of the statute. Instead, the constructive knowledge provision of the statute merely permits the requisite knowledge to be inferred from an individual’s exclusive and unexplained possession over a stolen or converted vehicle. We agree with that analysis and find no basis to conclude that the inference created in the statute presents a conflicting mental state requirement.

Finally, we note that statutorily created permissive inferences, such as the inference contained in section 4 — 103, do not violate due process guarantees where three considerations are satisfied: (1) there is a rational connection between the facts proved and the ultimate fact presumed; (2) the presumed fact is more likely than not to flow from the proved fact; and (3) the inference is supported by corroborating evidence of guilt. People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.

Here, the fact to be proved, knowledge that a particular vehicle has been stolen or converted, is rationally related to, and would more often than not follow from, facts showing exclusive unexplained possession of that vehicle. As our legislature observed in the language of section 4 — 103, the transfer of motor vehicles is strictly controlled by law and documented.

After reviewing the record, we are satisfied that sufficient corroborating evidence existed to support the inference of guilt. The owner of the vehicle, a 1976 light blue Cadillac, testified that he drove his car to church services on December 31, 1986. When he returned to where he had parked the car, it was gone. Witnesses established that, on the same night, defendant drove the Cadillac down an alley and crashed into a post, another car, and a garage. Defendant was caught as he attempted to climb a fence near where the Cadillac was stopped.

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

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.


author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIJAH PARKER et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—85—3655, 1—85—3711 cons.
    Opinion filed December 13, 1989.
    Rehearing denied January 29, 1990.

      Michael J. Pelletier and David M. Goldwin, both of State Appellate Defender’s Office, of Chicago, for appellant Elijah Parker.
    Randolph N. Stone, Public Defender, of Chicago (Ruth A. McBeth, Assistant Public Defender, of counsel), for appellants Charles Maddox and Lee White.

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

delivered the opinion of the court:

Defendants, Elijah Parker, Charles Maddox and Lee White, were charged by indictment with multiple counts of armed robbery stemming from the robbery of a Jewel Food Store in Blue Island, Illinois. Parker and White were tried by a jury and convicted on all counts. Maddox chose a bench trial. He too was convicted on all counts. Maddox and White received concurrent sentences of 18 years’ imprisonment on each count. Parker received concurrent sentences of 30 years’ imprisonment on each count. All defendants appeal their convictions. Defendant White also appeals his sentence. The appeals have been consolidated for purposes of review.

All defendants filed various pretrial motions. Parker’s motions included a motion to quash arrest and a motion to suppress identifications. Maddox’ motions included a motion to sever his case from Parker’s and White’s cases. The trial court denied all of the motions. However, it did grant White trial counsel separate from that of Parker and Maddox.

On appeal, defendant Parker first contends that the trial court erred in denying his motion to quash his arrest because he was arrested without probable cause.

We need not dwell at length upon this issue. We have reviewed the evidence of the circumstances of defendant Parker’s arrest and conclude that he was arrested without probable cause. Therefore, the lineup identifications of Parker obtained as a result of that arrest should have been suppressed as “fruit of the poisonous tree.” These determinations notwithstanding, the error in admitting that evidence at trial does not require a reversal of his convictions unless we also find that the remaining competent and admissible evidence against him was insufficient to prove his participation in the robbery beyond a reasonable doubt. (See People v. Spicer (1987), 163 Ill. App. 3d 81, 516 N.E.2d 491.) However, we do not so find.

At trial, John Burk testified that, at approximately 2:45 p.m. on July 10, 1984, he was cashing a check at the service desk of the Jewel Food Store in Blue Island, Illinois, when defendant White, who had been standing behind Burk, pointed a gun at the store manager, the only person behind the desk, and said, “This is a stick-up,” and he then jumped over the counter. White, who was wearing military clothing, then demanded money from the manager, who proceeded to load it into plastic bags. At this time, defendant Maddox was parading in front of the service desk and checkout counters holding two guns over his head and threatening to shoot anyone who moved. Maddox then approached the service desk to assist White with the bags of money, and Burk noticed defendant Parker standing by the store’s “in and out” doors. Parker, who had no gun, had “an overthrow shirt or something on.” Parker left the store first, followed by White and Maddox.

LeDora McDonald testified that she was working at the Jewel store on July 10, 1984, at about 2:45 p.m., when she heard someone say, “[H]ey” while she was “checking” and giving a customer his change. She turned around and saw someone holding a gun. Asked what this person said or did after getting her attention, McDonald responded, “He told me that it was going to be a stickup, his buddy would let everybody know in a few minutes, start putting my money in the bag and I did that.” While McDonald was putting money into the bag, this person’s “buddy let us know what was going on.” After putting the money into his bag, “this person” moved over to get the money from the girl at the next counter and then told a bagger “to move on down to get the rest of the money from the rest of the people while he moved over and started making the people come in the door.” After stating that the person who pulled a gun and had her empty her drawer of money into his bag was in court, McDonald described him as wearing “a black coat, white shirt and mixed tie.” The record reflects that this was defendant Parker. After stating that “the man who was out front” with two guns was also in court, McDonald described him as wearing a black jacket and gray pants. The record reflects that this was defendant Maddox. McDonald further testified that Parker was wearing a shirt at the time of the robbery and had his hair done in French braids.

Defendant Parker contends that he was not proved guilty of armed robbery beyond a reasonable doubt. Specifically, he argues that neither Burk’s nor McDonald’s testimony conclusively established that Parker had any role in the armed robbery but that Burk’s testimony merely established his presence at the scene, which was not sufficient for a conviction. People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444.

We disagree. Very recently, our supreme court stated:

“ ‘[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be *** to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact *** to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences ***. Once a defendant has been found guilty ***, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee *** due process of law.’ ” (Emphasis added.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.)

Applying this very deferential standard here, we are compelled to reject defendant’s arguments.

Defendant Parker asserts that McDonald’s identification of him was vague and uncertain and thus inadequate to convict him. (People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444.) In so arguing, he focuses on her response, “Yes, I think so,” when asked on direct examination whether the individual who pulled a gun on her and had her empty her drawer into a bag was in court. He also cites part of her cross-examination regarding her in-court identification of him, which went like this:

“Q. You were asked by the Prosecutor to identify that individual that came by *** the counter. You said, T think so.’ There is some doubt in your mind *** as to who exactly you identified as the perpetrator of that crime ***?
A. No doubt.
Q. There is no doubt?
A. No doubt.
Q. So, when you say, T think so,’ when asked *** if you can identify that man, then you were mistaken, is that correct?
[Prosecutor]: Objection, your Honor.
Q. When you said, T think so,’ you did say, T think so,’ didn’t you?
A. I really don’t know, but I mean the guy is here.”

In narrowly focusing upon McDonald’s response, “I think so,” when asked if the robber who accosted her was in court, defendant Parker ignores that she immediately thereafter and without hesitation made an in-court identification of him by describing what he was wearing in the courtroom. In citing the above-quoted cross-examination of McDonald, we believe defendant Parker seeks to take advantage of his trial counsel’s attempt to twist the meaning of McDonald’s “No doubt” responses to his cross-examination. Moreover, McDonald’s response, “I really don’t know,” cannot be construed to mean that she did not know the identity of the robber who accosted her. Any doubt in that regard is removed by her immediately following statement that “the guy is here.” Considering McDonald’s identification testimony in the light most favorable to the State, we cannot say that any rational juror would have found it so vague and uncertain as to create a reasonable doubt of defendant’s participation in the robbery.

Parker also cites the inconsistency between Burk’s and McDonald’s testimony regarding his actions during the robbery and whether he possessed a gun at that time. He further cites the inconsistency between their testimony that he was wearing a shirt during the robbery and that of the Blue Island police officers that he was not wearing a shirt when arrested shortly thereafter, pointing out that the police did not find a shirt either at the scene of the robbery or the scene of his arrest. Citing People v. Hister (1975), 60 Ill. 2d 567, 328 N.E.2d 531, he concludes that these inconsistencies created a reasonable doubt of his guilt.

Considering the inconsistencies in Burk’s and McDonald’s testimony in the light most favorable to the State, we conclude that, notwithstanding them, a rational jury could have found defendant guilty of the essential elements of armed robbery beyond a reasonable doubt. Specifically, we cannot conclude that a rational jury was compelled to accept Burk’s testimony that defendant Parker had no weapon and merely stood by the store’s front doors over that of McDonald that he had a gun and actively participated in the robbery. As Young and Jackson note, it is the function of the jury, not a court of review, to resolve evidentiary conflicts and to weigh the evidence.

The alleged consistency between McDonald’s and Burk’s testimony, on the one hand, that he wore a shirt during the robbery and that of the Blue Island police officers, on the other hand, that he was shirtless when arrested and that they found no shirt either at the scene of the arrest or robbery suffers the same fate as the foregoing inconsistencies.

Parenthetically, we note that this testimony presented no real inconsistency. Unlike Burk and McDonald, no police officer observed defendant Parker during the actual robbery. Moreover, Officer Gawrysiak, who saw the suspects fleeing almost immediately thereafter, never identified either of the two suspects, whose clothes he was able to describe over the radio, as defendant Parker. In addition, the jury could have reasonably inferred from Burk’s and McDonald’s testimony that Parker left the store before White and Maddox, that he removed his shirt and that the police simply were unable to find it. However, even assuming that Burk and McDonald were mistaken about a shirt, a rational jury could still find their positive in-court identifications of Parker to be proof beyond a reasonable doubt of his participation in the robbery.

Defendant Parker next contends that, even if there was proof beyond a reasonable doubt of his guilt of the charges of armed robbery of McDonald and the cashier next to her, Rhonda Servant, there was insufficient proof of the charges of armed robbery of two other cashiers, Wilma Lambert and Barbara Horvath, on duty at the time of the robbery. With respect to these charges, McDonald testified that Lambert and Horvath were present during the robbery and that Parker sent a bagger to get the money from the “rest of the people” after personally taking money from McDonald and Servant. Moreover, Ronald Karpowicz, the assistant store manager on duty during the robbery, testified that upon checking the cash registers after the robbery he found that they were all “basically” out of money and that “just about” everything had been taken from them. Defendant Parker argues that this testimony was insufficient to prove the armed robbery of Lambert and Horvath. We agree.

The State’s only relevant response is that Karpowicz’s testimony allowed a logical and reasonable inference that money was taken from all the cashiers because “this was a Friday afternoon during the busiest time of day.” This argument completely ignores what was a sine qua non of proof of all the robbery offenses charged in this case, i.e., proof that there was money in the presence of the store’s assistant store manager and cashiers before the robbery. That essential element of proof was satisfied as to the assistant store manager and cashiers McDonald and Servant. It was not satisfied as to cashiers Lambert and Horvath.

The inference upon which the State seeks to justify defendant’s convictions of robbery from Lambert and Horvath is not based on any record evidence other than perhaps McDonald’s testimony that there were 100 people in the store at the time of the robbery. However, the inference drawn by the State that there must have been money taken from Lambert and Horvath is a non sequitur simply from that fact and the fact that the registers were out of money after the robbery. The relative ease with which the State could have met the requirement of proof that money was taken from Lambert and Horvath makes its failure to do so that much more egregious.

This conclusion notwithstanding, McDonald’s testimony that Parker ordered her bagger to get the money from “the rest of the people” does not, as he implies, create a reasonable doubt of guilt of armed robbery from Lambert and Horvath. A person cannot escape legal culpability for robbery by using another under a threat of force or violence as the immediate or remote means or tool to commit the actual taking of property from the person or presence of another who is also threatened with force or violence.

Defendant Parker lastly contends that Officer Douglas Hoglund was improperly allowed to testify that defendant was driving a stolen car at the time of his arrest.

Having found that defendant Parker was arrested without probable cause, evidence that he was. driving a stolen vehicle at the time thereof “constituted fruit of the poisonous tree.” Unlike the eyewitnesses’ testimony of defendant’s participation in, and presence at the scene of, the armed robbery and their in-court identifications of him, there was no basis for admission of this testimony independent of his illegal arrest. The State asserts that that evidence was admissible to show the circumstances of defendant’s arrest as it formed a continuous narrative of the context of the arrest. Notwithstanding the general validity of that rule, we do not believe that it is applicable where, as here, an arrest was made illegally. However, we do not believe the error in admitting this evidence requires reversal of defendant’s convictions. Where the evidence of guilt is overwhelming, any error in admitting evidence of other crimes committed by a defendant is harmless beyond a reasonable doubt. (People v. Teffertiller (1987), 158 Ill. App. 3d 72, 510 N.E.2d 1322; In re L.F. (1983), 119 Ill. App. 3d 406, 456 N.E.2d 646.) That we believe to be the case here.

In their own appeal, defendants White and Maddox first contend that they were denied a fair trial by improper remarks during the State’s opening statement which implied that defendants’ indictment was proof of their guilt, placed the prosecutor’s professional and official prestige before the jury and misled the jury. Defendant White also asserts that the prosecutor improperly impugned his credibility in closing argument by calling him a murderer (in apparent confusion with defendant Parker, who had a prior conviction for murder). Defendants further assert that the prosecutor’s statement that defense counsel “had an answer for everything” was an improper accusation of fraud which could only antagonize the jury.

We find that defendants waived any error in the prosecutor’s allegedly improper opening statements and closing arguments by failing to object at that time and by failing to raise the errors with specificity in their post-trial motions. (People v. Sanders (1988), 168 Ill. App. 3d 295, 301, 522 N.E.2d 715; People v. Ammons (1983), 120 Ill. App. 3d 855, 859-60, 458 N.E.2d 1031.) Moreover, even assuming the impropriety of such statements (see People v. Bitakis (1972), 8 Ill. App. 3d 103, 106, 289 N.E.2d 256) and arguments (see People v. Monroe (1977), 66 Ill. 2d 317, 324, 362 N.E.2d 295), we do not believe that they constituted plain error. We find the State’s evidence of defendants White’s and Maddox’ participation in the robbery of the Jewel Food Store, especially that relating to the circumstances of their capture soon after the robbery, overwhelming. As such, defendants could not have suffered any substantial prejudice from the prosecutor’s remarks. (See, e.g., People v. Trotter (1988), 178 Ill. App. 3d 292, 300, 533 N.E.2d 89; People v. Guyon (1983), 117 Ill. App. 3d 522, 537, 453 N.E.2d 849.) The errors were harmless beyond a reasonable doubt.

Defendants White and Maddox next contend that the trial court abused its discretion when it refused to sever the charges stemming from the robbery of the Jewel Food Store from the charge stemming from the robbery of Pamela Swierczewski allegedly committed by defendants White and Maddox after fleeing the store.

Swierczewski testified that she was unloading her car near her home at 15520 Vincennes in Blue Island at about 3 p.m. on July 10, 1984, when she saw three black men running down the alley toward her. The men came up to her and one, who she identified as defendant Maddox, pointed a gun at her and said, “Lady, give me your keys and I won’t hurt you.” After Swierczewski handed him her keys, two of the men got in her car and the third, who could not get in because the passenger side seat was broken, ran off.

No error relative to a denial of the alleged motion for severance is properly before us on appeal because defendants White and Maddox made no motion for severance in the trial court on the ground asserted on appeal. Rather, the record reveals that a motion for severance was made on behalf of defendants Parker and Maddox on the grounds that defendant White had made statements incriminating them in the robbery and that there was a difference in the charges against Parker and Maddox, i.e., Parker was not charged with the robbery of Swierczewski. This motion was granted to the extent that White was granted separate trial counsel. Moreover, even assuming that the motion for severance expressly made only on behalf of defendants Maddox and Parker was also made on behalf of defendant White, the post-trial motions of defendants Maddox and White conclusively reveal that the motion was for separate trials for each defendant, not separate trials of the store robbery charges and the charge of robbery of Swierczewski. Having made no motion to sever the charge of robbery of Swierczewski, defendants White and Maddox obviously cannot now contend that the denial of such a motion was an abuse of discretion.

Defendant White lastly contends that the trial court abused its discretion because it sentenced him without considering his rehabilitative potential.

We agree with defendant that a trial court has a duty to actually consider a defendant’s rehabilitative potential. “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) This constitutional mandate requires that the sentencing court consider and act on the goal of rehabilitation as an objective of its sentence. (People v. Gibbs (1977), 49 Ill. App. 3d 644, 648-49, 364 N.E.2d 491.) Finally, while rehabilitative potential is entitled to no greater weight than the seriousness of an offense (People v. Alcazar (1988), 173 Ill. App. 3d 344, 356, 527 N.E.2d 325), the record must nonetheless indicate that the court considered both sentencing elements (People v. Morando (1988), 169 Ill. App. 3d 716, 726, 523 N.E.2d 1061).

However, we disagree with defendant that, for a record to reflect actual consideration of rehabilitative potential, a trial court must expressly indicate its consideration thereof in haec verba. The requirement that a trial court actually consider rehabilitative potential has not been so construed.

Rather, a trial court’s examination of a presentence investigation report which recites several mitigating factors is “in itself, a basis for finding that defendant’s [rehabilitative potential] was considered.” (People v. Shumate (1981), 94 Ill. App. 3d 478, 485, 419 N.E.2d 36; People v. Wilson (1985), 138 Ill. App. 3d 513, 527, 485 N.E.2d 1264.) Similarly, the requirement of section 9 — 1(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(c)) that a jury considering the death penalty consider any mitigating factors relevant to the imposition of that penalty is sufficient to satisfy the mandate of article I, section 11. (People v. Gaines (1981), 88 Ill. 2d 342, 381-82, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285; People v. Free (1983), 94 Ill. 2d 378, 420-21, 447 N.E.2d 218, cert. denied (1983), 464 U.S. 865, 78 L. Ed. 2d 175, 104 S. Ct. 200.) Applying this case law here, we find that the trial court actually considered defendant’s rehabilitative potential.

Defendant White asserts that, while the trial court stated its consideration of the fact that the instant convictions were his first felony convictions, it did not consider his youth or that he had only one prior misdemeanor conviction. However, defendants’ birthdate and age were both noted in the presentence investigation report filed with the court. Chicago and State police documents, indicating that defendant had only a 1978 misdemeanor theft conviction, were appended to the report. The trial court expressly indicated its consideration of the presentence report before sentencing defendant, albeit not immediately before doing so. Since the report contained the factors relevant to rehabilitative potential which defendant cites on appeal, the trial court must be held to have considered that potential under Shumate and Wilson.

In addition, the State conceded that defendant White met one of the statutory mitigating factors in that he had no history of prior delinquency or criminal activity other than the misdemeanor theft conviction and had led a law-abiding life for a substantial period of time before the commission of the armed robbery. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.1(a)(7).) Defense counsel also noted that the theft conviction was defendant’s only prior conviction and argued that there was no reason to believe, based on that record, that he would be similarly charged again. Evidence of defendant’s satisfaction of the statutory mitigating factor, which was conceded by the State and which was argued by defense counsel, also constituted evidence of rehabilitative potential under the foregoing cases. Having been put before the trial court, we must presume that it took this evidence into consideration in sentencing defendant. See People v. Smith (1980), 91 Ill. App. 3d 438, 451-52, 414 N.E.2d 1281, rev’d on other grounds (1982), 93 Ill. 2d 179, 442 N.E.2d 1325, cert. denied (1983), 461 U.S. 937, 77 L. Ed. 2d 312, 103 S. Ct. 2107.

In this regard, we must disagree with the holding in People v. La Pointe (1980), 85 Ill. App. 3d 215, 223, 407 N.E.2d 196, rev’d on other grounds (1981), 88 Ill. 2d 482, 431 N.E.2d 344, and with Smith to the extent that it reaffirms the La Pointe holding, that in order to properly consider rehabilitative potential, a trial court must weigh mitigating factors “in terms of” the goal of rehabilitation.

The mandate of article I, section 11, obviously extends to the legislature. We must therefore presume that the legislature took that mandate into consideration in establishing the statutory mitigating factors (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2) and aggravating factors (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.1). Since the mitigating factors, like rehabilitative potential, militate in favor of less severe punishment, it is reasonable to presume that the legislature concluded that these factors indicated rehabilitative potential which increased as the number of such factors applicable to a defendant increased. The legislature has thus established a statutory scheme whereby sentencing courts implicitly consider rehabilitative potential when they consider mitigating factors in sentencing defendants. As such, they need not reweigh mitigating factors “in terms of determining rehabilitative potential.” See People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218; People v. Gaines (1982), 88 Ill. 2d 342, 430 N.E.2d 1046; People v. Wilson (1985), 138 Ill. App. 3d 513, 485 N.E.2d 1264; People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36.

For the foregoing reasons, we: (1) affirm the convictions of defendants Maddox and White and the sentence of defendant White; (2) affirm defendant Parker’s convictions except for those arising from the alleged robberies of Wilma Lambert and Barbara Horvath, which we vacate; and (3) vacate the concurrent sentences imposed thereon.

Affirmed in part; vacated in part.

RIZZI and CERDA, JJ., concur.

      That evidence included the in-court identifications of Parker by the State’s witnesses, which had a basis independent of the illegal arrest, i.e., the opportunity to observe defendant during the robbery. See People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.

      See also Ill. Rev. Stat. 1985, ch. 38, par. 1001—1—2 (providing that purposes of the Unified Code of Corrections are, inter alia, to prescribe sanctions proportionate to the seriousness of offenses, to permit the recognition of differences in rehabilitative potential and to restore offenders to useful citizenship).