author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY DALE BARNHILL, Defendant-Appellant.
    Fifth District
    No. 5 — 87—0818
    Opinion filed September 19, 1989.

      Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Terry M. Green, State’s Attorney, of Benton (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Rodney Dale Barnhill, entered a plea of guilty but mentally ill to the offense of murder on July 9, 1986, and was sentenced to a term of natural life imprisonment on July 30, 1986. The defendant filed a pro se motion to withdraw his guilty plea on August 7, 1986, which was subsequently denied by the court. The defendant appeals.

On appeal, the defendant contends first, that the circuit court did not substantially comply with the requirements of Supreme Court Rule 402(b) (107 Ill. 2d R. 402(b)), when it failed to inquire specifically whether any promises had been made to the defendant to induce his guilty plea; second, that the defendant’s plea of guilty but mentally ill was not voluntary and must be vacated as the defendant was promised that if he pleaded guilty he would be sentenced to the Department of Mental Health; and third, that the sentence of natural life imprisonment was excessive. In a supplemental brief filed by the defendant, it is contended that the sentencing statute, wherein a defendant may be sentenced to natural life imprisonment if a court finds that the crime was the result of “exceptionally brutal or heinous behavior indicative of wanton cruelty,” is unconstitutionally vague. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b).) Because of the nature of the defendant’s contentions, a statement of facts is not recited here, but the necessary facts are given under the discussion of each issue.

Defendant’s first contention is that the circuit court did not substantially comply with the requirements of Rule 402(b) in that the court did not specifically inquire of him as to whether any “promises” had been made which had induced him to plead guilty. Rule 402 provides in pertinent part:

“In hearings on pleas of guilty, there must be substantial I compliance with the following:
* * *
*** The court shall not accept a plea of guilty without first determining that the plea is voluntary. *** The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.” (107 Ill. 2d R. 402(b).)

Clearly, the statute itself and the case law require only that substantial and not literal compliance with Rule 402(b) is necessary to fulfill the purpose of the statute. (People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E.2d 559; People v. Clem (1979), 72 Ill. App. 3d 163, 390 N.E.2d 615.) In determining whether there has been substantial compliance, the entire record may be considered. (Krantz, 58 Ill. 2d 187, 317 N.E.2d 559.) After reviewing the entire record in the case sub judice, we determine that there has been substantial compliance with Rule 402(b).

At the hearing in which the defendant tendered his plea of guilty but mentally ill, the circuit court advised the defendant that he was charged with the offense of murder and read the charge against him. When asked by the court if he understood the nature of the charges against him, the defendant responded that he did.

The court admonished the defendant as to all the possible penalties for the offense of murder: a term of 20 to 40 years, the term of years for an extended-term sentence, the term of years if consecutive sentences are imposed, and the possibility of a term of imprisonment for the defendant’s natural life. The court explained the mandatory release provisions and the considerations involved in a guilty but mentally ill plea, including the differences between a straight guilty plea and the guilty but mentally ill plea. The defendant was advised by the court that it would be the judge who sentenced him and no one else. The court asked the defendant if he understood the possible range of penalties, to which the defendant responded affirmatively.

The court inquired as to the defendant’s physical well-being and was told that the defendant received medication for his mental illness but that this medication did not interfere with his functioning. The court ascertained that the defendant attended high school until the eleventh grade and that he was in the special education program. The defendant could not read or write and had never worked.

The circuit court explained his constitutional rights to the defendant, i.e., that he had a right to a jury or a bench trial, the right to confront and cross-examine witnesses, the right to plead not guilty, the right to have the State prove him guilty beyond a reasonable doubt, and the continuing right to counsel. The defendant stated that he understood his rights.

The circuit court asked the defendant if he was entering his plea of guilty freely and voluntarily. The court also asked the defendant if he were being forced or compelled “in any way” to enter his guilty plea, and the defendant stated that he was not. The court determined that the defendant had been treated well while incarcerated in the county jail.

The court required the State to put on evidence to show that it was the defendant who in fact committed the offense. This evidence was presented through the testimony of John Moore, an investigator for the Franklin County sheriff’s department. Moore had investigated the murder and had taken the defendant’s statement in which the defendant confessed to the killing. After hearing the testimony, the court asked the defendant if Moore’s statement was substantially true, and the defendant agreed that it was. The defendant admitted that he was pleading guilty because he had murdered the 14-year-old victim.

Lastly, the court considered two reports from psychiatrists and one report of a psychologist, who had examined the defendant to determine his mental capabilities. These reports established that the defendant was mentally deficient, i.e., the psychiatrists found that the defendant had a learning disability and possibly borderline mental retardation and the psychologist diagnosed the defendant as mildly mentally retarded and schizophrenic, but that he was capable of understanding the charges against him and able to assist in his defense.

The defendant argues that because the court did not ask if “promises” were made to the defendant, as required under Rule 402(b), there was not substantial compliance with the statute and the defendant’s guilty plea must be vacated. The record reveals that the court did not use the word “promise” in its questioning of the defendant. But as was noted previously, it is substantial and not literal compliance with Rule 402(b) which is crucial. The following eolioquy transpired between the court and the judge at the guilty plea hearing:

“THE COURT: Are you doing this freely and voluntarily?

DEFENDANT: Yes, sir.

THE COURT: You’ve discussed this matter at length on numerous occasions with your attorney, your family’s here today and you’ve discussed it with your family and you understand that you — you think this is the best thing for you to do under the circumstances that you are now in, is that correct, Mr. Barnhill?

DEFENDANT: I don’t really know, I guess it is.

THE COURT: Okay. But you’re doing this freely and voluntarily?

DEFENDANT: Yes.

THE COURT: Nobody’s forced you to do this or compelled you to do this in any way.

DEFENDANT: No.

THE COURT: This is your decision, in other words.

DEFENDANT: Yes.”

This conversation established that the circuit court did inquire of the defendant as to whether he was being forced to enter into the guilty plea and whether it was the defendant’s voluntary decision. The statute does not require that a court use the exact words of the statute when it questions a defendant, but only requires that a circuit court determine, through its questioning of the defendant, that no promises or force or threats were used to induce the defendant to plead guilty. From the record in this case, the circuit court properly determined that the defendant’s plea of guilty but mentally ill was not made as a result of any promises.

This case is analogous to People v. Woods (1985), 134 Ill. App. 3d 294, 480 N.E.2d 179, in which the defendant contended that the circuit court never specifically inquired whether any promises were made to the defendant. The reasoning of Woods is applicable here, that although failure to comply strictly with Rule 402 is not condoned, each and every deviation therefrom does not require reversal. If, as here, it can be determined upon a review of the record that the defendant’s guilty plea was voluntary, then any error in failure to comply strictly with Rule 402 is regarded as harmless error. (Woods, 134 Ill. App. 3d 294, 480 N.E.2d 179.) In this case, the defendant’s plea was voluntarily made and there was substantial compliance with Rule 402(b); therefore, if, arguendo, the court’s failure to ask the defendant if he had been promised anything to induce his guilty plea was error, it was harmless.

The defendant next contends that his plea of guilty but mentally ill was involuntary as his attorney and an employee of the sheriff’s department promised him that he would be sent to a mental institution instead of to prison if he pleaded guilty. Rule 402 was adopted for the purpose of having the record reflect that a guilty plea was knowingly and voluntarily made. (People v. Stewart (1984), 101 Ill. 2d 470, 463 N.E.2d 677.) If a defendant is thoroughly admonished in accord with Rule 402, a guilty plea is not revocable simply because a defendant subjectively believed that he would receive a certain sentence which was not forthcoming. People v. Turner (1983), 111 Ill. App. 3d 358, 443 N.E.2d 1167.

At the hearing on the defendant’s motion to withdraw his guilty plea, the only evidence presented by the defendant was his sole statement that he believed that he was going to be sent to a mental institution. The testimony of the defendant was as follows:

“Q[uestion]. What did you believe would be the sentence in this case?

A[nswer]. I believed that I was going to go to a mental institution.

Q. Were any promises given to you that you would be going to a mental institution?

A. Yes, there was.

Q. And who made those promises to you?

A. Carroll Owens [defense counsel] and Captain John Moore. I

Q. Mr. Barnhill, what were you promised? I

A. They promised me that I would not go to prison, that I I needed help, that they wanted me to be in a mental institution.

Defendant also stated that he did not understand the proceedings at his guilty plea hearing. On cross-examination, the defendant testified that he knew who the judge was and who his defense counsel was. The defendant admitted that the judge never told him that any of the possible sentences were to a mental institution. The defendant likewise acknowledged that he had stated that he understood what the judge had said at the guilty plea hearing. When the judge had asked him if he had any questions, the defendant responded that he did not. The defendant denied that he had asked the judge at the guilty plea hearing how long of a sentence he would receive. He later stated he did not remember asking the judge about the length of the sentence. No other evidence was presented at the motion hearing.

In denying the defendant’s motion to withdraw his guilty plea, the court stated that it had carefully and extensively admonished the defendant of his rights at the time the defendant entered his plea of guilty and that the defendant was “articulate, alert, [and] participated very capably in his own defense on the witness stand.” The court further found that the defendant had understood his rights and that he had intelligently, voluntarily and freely entered his guilty plea. The court determined that the record did not support the defendant’s contention that promises were made to him to induce his guilty plea. We agree with the circuit court that the record negates the defendant’s contention that promises were made that would induce his guilty plea.

The circuit court extensively admonished the defendant as to the possible penalties he could receive, ranging from a term of 20 to 40 years to natural life imprisonment. The judge did not state that the defendant could be sent to a mental institution as a possible sentence. This admonishment was sufficient to advise the defendant that he was to be given a prison sentence. Additionally, the defendant’s question to the judge, during the judge’s admonishments regarding possible penalties, where he asked, “How many years do you think I’ll get?” indicated that the defendant knew that he was going to receive a prison sentence rather than being sent to a mental institution. The defendant stated, upon being questioned by the court, that he was not being forced in any way to enter his plea of guilty and that he was doing so voluntarily and freely.

Where, as here, a defendant is thoroughly admonished, a subjective belief regarding the sentence to be received will not make a guilty plea revocable, unless there can be found a reasonable justification for the defendant’s mistaken belief. (People v. Kraus (1984), 122 Ill. App. 3d 882, 461 N.E.2d 1036.) It is the defendant’s burden to show that there is a reasonable justification for his belief. (Kraus, 122 Ill. App. 3d 882, 461 N.E.2d 1036; Turner, 111 Ill. App. 3d 358, 443 N.E.2d 1167.) We cannot find that the defendant met his burden of proof in this case. The only evidence of a promise made to the defendant was by his own self-serving statements that this was so. No corroboration of this testimony was offered. The defendant’s testimony only supports the conclusion that he held an unjustified, subjective belief that he would be sent to a mental institution. Therefore, we find that the defendant’s guilty plea was made voluntarily and freely.

Before we consider the defendant’s contention that the circuit court abused its discretion in imposing a sentence of natural life imprisonment, we first address the defendant’s contention that the language of section 5 — 8—1(a)(1)(b) of the Unified Code of Correetions is unconstitutionally vague. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b).) The defendant contends that section 5 — 8— 1(a)(1)(b) is unconstitutionally vague as the language of that section is similar to the language of an Oklahoma statute which was found to be unconstitutionally vague in a recent decision of the United States Supreme Court. (Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853.) This issue was not raised before the circuit court but is raised for the first time on appeal; however, we are not barred from consideration of this issue as a constitutional challenge to a statute may be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221.

The defendant here contends that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” as used in section 5 — 8—1(a)(1)(b) to determine whether a term of natural life imprisonment will be imposed for a conviction of murder is unconstitutionally vague both on its face and as applied. We first consider whether the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” is unconstitutionally vague on its face. This contention is inherently a due process argument, for when a statute is unconstitutional on its face, it is because the words used have failed to adequately give notice of the action or conduct proscribed. (People v. Caffrey (1983), 97 Ill. 2d 526, 455 N.E.2d 60.) A person is not required to speculate as to the meaning of penal statutes. (Caffrey, 97 Ill. 2d 526, 455 N.E.2d 60.) However, impossible levels of specificity are not required in penal statutes, but must convey sufficient warning such that the statute can be understood when measured by common understanding and practices. (People v. Wisslead (1985), 108 Ill. 2d 389, 484 N.E.2d 1081; Caffrey, 97 Ill. 2d 526, 455 N.E.2d 60; People v. Khan (1985), 136 Ill. App. 3d 754, 483 N.E.2d 1030.) The words of a statute are presumed to have their ordinary and popularly understood meanings. (Caffrey, 97 Ill. 2d 526, 455 N.E.2d 60.) Additionally, statutes are presumed to be constitutional. (Caffrey, 97 Ill. 2d 526, 455 N.E.2d 60.) It is a court’s duty to construe a statute so as to affirm its constitutionality and validity, if this can be reasonably done, and if there is doubt about a statute’s construction, the doubt is to be resolved in favor of the validity of the challenged statute. People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.

Webster’s Third New International Dictionary defines “brutal” as meaning: “stemming from or based on crude animal instincts: grossly ruthless; devoid of mercy or compassion; cruel and coldblooded; harsh and severe.” (Webster’s Third New International Dietionary 286 (1971).) “Heinous” is defined as something which is “hatefully or shockingly evil; grossly bad; [or] enormously and flagrantly criminal.” (Webster’s Third New International Dictionary 1050 (1971).) The term “cruel” is defined by Webster’s as “disposed to inflict pain especially in a wanton, insensate, or vindictive manner; pleased by hurting others; devoid of kindness; given to killing and mangling or to tormenting prey.” (Webster’s Third New International Dictionary 546 (1971).) These definitions are commonly understood and give the trier of fact sufficient warning and understanding as to the type of murder which qualifies for imposition of a natural life sentence. And, as was stated by the supreme court in Wisslead, the myriad kinds of conduct which fall within the purview of the statute need not be particularized for the statute to be constitutional. (Wisslead, 108 Ill. 2d 389, 484 N.E.2d 1081.) It would be an almost impossible task for the legislature to particularize the exact circumstances which constitute a brutal and heinous crime; therefore, these words are sufficiently indicative of the type of murder which warrants a sentence of natural life imprisonment and are not unconstitutionally vague on their face.

In support of the defendant’s argument that the language of section 5 — 8—1(a)(1)(b) is unconstitutionally vague, he relies primarily upon Maynard. We do not find that Maynard is applicable in this case as Maynard is a death penalty case where the case sub judice is not. It has been held that capital punishment cases are a separate entity from all other cases, i.e., that “the penalty of death is qualitatively different from a sentence of imprisonment, however long.” (Woodson v. North Carolina (1976), 428 U.S. 280, 305, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991.) The United States Supreme Court went on in Woodson to say:

“Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Woodson, 428 U.S. at 305, 49 L. Ed. 2d at 961, 96 S. Ct. at 2991.)

Because capital cases have been accorded a more stringent consideration, we cannot consider Maynard as guiding in this case.

The analysis for constitutional vagueness was stated by the Supreme Court in Maynard as follows:

“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis. [Citations.] Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972).” (Maynard, 486 U.S. at 361-62, 100 L. Ed. 2d at 380, 108 S. Ct. at 1858.)

Thus, while capital punishment cases are considered under the eighth amendment (U.S. Const., amend. VIII), to find section 5 — 8—1(a)(1)(b) unconstitutionally vague, we must determine if the application of the statute to the facts in this case produces an unconstitutional result, i.e., that the provision is unconstitutionally vague on an as-applied basis. (Maynard, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853; Bales, 108 Ill. 2d 182, 483 N.E.2d 517; Wisslead (1985), 108 Ill. 2d 389, 484 N.E.2d 1081; People v. Sturlic (1985), 130 Ill. App. 3d 120, 474 N.E.2d 1.) The defendant has not alleged that his conduct was not exceptionally brutal or heinous and indicative of wanton cruelty. That his conduct came within the scope of the meaning of “exceptionally brutal and heinous behavior indicative of wanton cruelty” is clear from the record.

The evidence presented by the State at sentencing was as follows: Debbie Stone Hildreth testified that she had known the defendant for approximately 13 years. Her acquaintance with him was through church. Her parents and the defendant’s parents had been friends, and when she was 17 years old, in October of 1979, her parents and the defendant’s parents had a yard sale at the defendant’s parents’ home. On this occasion, the defendant asked her to bring him a soda from the refrigerator. When Hildreth went inside to do so, the defendant followed. The defendant went to his room and returned with a rope which he used to tie her. The defendant also placed a rag in her mouth. While she was tied up, the defendant “touched her” and “unbuttoned one button on her pants.” The defendant was interrupted from his activities by his parents coming inside the house.

In addition to Hildreth’s testimony, a presentence investigation report was submitted to the court. Attached to the presentence report was a discharge summary from Alton Mental Health Center. This document stated that the defendant was admitted to this facility on October 2, 1979, and gave the following basis for his admission:

“Client came to [the] hospital accompanied by Marc Goodman, counselor, after he tied his ex-girlfriend down, attempted rape and had thought of killing her but was interrupted by his family.”

The diagnosis of the defendant’s condition given in the discharge summary was schizophrenia and drug dependence (based on the defendant’s history).

The State also presented a transcript of the defendant’s taped statement made to John Moore on July 6, 1985. The transcript established that on July 4, 1985, the defendant went to the victim’s home to sell her father some cigarettes. While the defendant was at the Boner home, he said hello to Ruth Ann Boner. When the defendant left the Boners’ home, he stated that Ruth Ann followed him on her bicycle. According to the defendant, Ruth Ann told him that she was going to her boyfriend’s home. The defendant offered Ruth Ann a bicycle and had her follow him to an abandoned house. The defendant admitted that, at the time he offered the bicycle to Ruth Ann, he did not have a bicycle to give her.

At the abandoned home, the defendant had Ruth Ann come inside the house by explaining to her that the bicycle was inside. When they were inside the house, the defendant grabbed Ruth Ann from behind. The defendant stated: “I threw her down on the floor and stuff. Well, I was wanting to have sex with her and stuff, because teased me quite a few times.” Ruth Ann struggled to free herself, and the defendant choked her with his hands. The defendant admitted that, not only did he choke Ruth Ann with his hands but he also placed his foot on her neck. Lastly, he took a wire clothes hanger and garrotted her.

The defendant further stated that he removed Ruth Ann’s clothing and that he touched her “chest” and that he inserted his fingers into her vagina. He denied that he had sexual intercourse with her. When the defendant left, he thought that Ruth Ann was still alive.

After the defendant left the victim, he went to his friend’s, Greg Wilson’s, home but Wilson was not there. He then went to a man named Ron’s home, from which he proceeded to Wilson’s sister’s house, where he sat outside in the yard. He eventually went to his own home. The defendant stated that he did not talk to anyone about the crime as he was ashamed of it.

The following day, the defendant rode around with Wilson and drank beer. According to another statement made by the defendant to the police later on July 6, 1985, the defendant and Wilson burglarized the defendant’s sister’s home in Belleville on July 5, 1985, the day after the murder. The record indicated that the defendant’s sister’s home had been burglarized that day.

The circuit court was also provided with the reports of two psychiatrists and one psychologist at the sentencing hearing. Dr. Thomas Flynn, a psychiatrist, had examined the defendant to determine the defendant’s fitness to stand trial. His report indicated that the defendant had drunk beer, Mad Dog 20 — 20 wine, and that he had taken four Placydils (a sedative), 750 milligrams, on the day of the crime. The defendant told the doctor that he had been drinking since he was 15 or 16 years old. The defendant stated that he also liked to sniff gold spray paint.

When Dr. Flynn asked the defendant if he had ever been in a mental hospital, the defendant advised him that he had been hospitalized at Alton Mental Health Center for tying an ex-girlfriend up and gagging her. He told the doctor he was thinking of killing her when he was interrupted by either her parents or his parents. He was hospitalized for six or seven months and was placed on the medication prolixin at that time. When he got out of the hospital, the defendant returned to his habit of taking drugs and drinking alcohol. In 1983, the defendant was again hospitalized at Alton Mental Health Center for his violent behavior. He remained hospitalized for approximately V-k months.

Dr. Flynn’s mental status examination revealed that the defendant was extremely childish and simple, but that he showed no signs of hallucinations or delusions. The doctor gave as his opinion that the defendant may have mild mental retardation but he did not test for this. He believed that the defendant had a learning disability, a theory which he supported by stating in his report that the defendant had a superb memory, but that the defendant was deficient in learning and education. He diagnosed the defendant as having an alcohol and drug dependence.

The report of Dr. Joseph Shuman, a psychiatrist, stated that the defendant told him that he had gotten drunk, smoked pot and had taken pills on the day of the murder. The defendant admitted to the doctor that, in the past, he had done a lot of stealing to obtain money to buy beer and marijuana. The defendant related the details of the murder to the doctor: he told the doctor he had followed the victim from her home after he had sold some stolen cigarettes to her father; that he offered to give her a bicycle and lured her to an abandoned house with this promise; that he told her the bicycle was inside the house, and when they went inside the house, he grabbed her and threw her onto the floor; that he only wanted to have sex with the victim, but that she fought him; that the defendant tore the j victim’s clothing off of her, and because she fought him, he started choking her; that he stood on her neck; that he ultimately placed a coat hanger around her neck; and that after the incident, he sat down on a couch and masturbated.

The defendant admitted to Dr. Shuman that he was afraid of going to jail and that he had attempted suicide while in jail because of his fear. He expressed fear of being sexually assaulted while in prison. He assured the doctor that he would sign a statement if he could be sent to Alton Mental Health Center for life.

The doctor noted that the defendant could not read or write and that he had attended special education classes in school. The defendant stated that he had been going to the mental health clinic in West Frankfort and that he received intramuscular injections of prolixin every two weeks. Since leaving school, the defendant had not worked just “partied” by taking drugs and by drinking alcohol.

Dr. Shuman administered psychological tests to the defendant. These tests revealed that the defendant was well oriented, that he was borderline mentally retarded, that the defendant had had difficulties during his life due to a learning disability, and that there were “questionable” signs of schizophrenia. The doctor noted that the defendant’s alcohol and illegal substance abuse must be included in his diagnosis.

Frederic Golden, a licensed clinical psychologist, examined the defendant at the defendant’s request. His testing of the defendant revealed “severe, pervasive chronic psychopathology,” which he determined was most consistent with a diagnosis of schizophrenia. Golden also determined that the defendant was mildly mentally retarded. He found the defendant had a reading level of a third grader, an essentially non-reading level. Golden reported that the defendant “apparently” had auditory hallucinations which commanded him to do violent acts.

With the foregoing information before it, the circuit court found that the defendant capably and carefully conceived his crime, that the defendant was 23 years of age at the time of the offense, and that the defendant enticed a mildly hearing disabled young victim to an abandoned house with the promise of a new bicycle. The court determined that the defendant’s motivation for the crime was sexual exploitation. The court also stated: “It is also clear that the defendant strangled the victim after disrobing her with his bare hands and a coat hanger and his feet[,] of all things[,] until she was dead.” The court found the defendant’s actions towards the victim were “exceptionally heinous and exceptionally brutal and exhibited wanton cruelty” and imposed a sentence of natural life imprisonment.

We find that the circuit court’s determination that the defendant’s actions were “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” was supported by the record and that the court did not apply the terms of section 5 — 8—1(a)(1)(b) in an unconstitutional manner in this case. The defendant’s actions appear to have been cold and calculated in that he conceived a plan to lure his young victim to an isolated location. When in the abandoned house, the defendant did not retreat from his purpose when the victim resisted, but he instead strangled her. The defendant’s actions of choking the victim with his hands and standing on her neck and ultimately garrotting her with a coat hanger were indicative of cold-blooded behavior, devoid of mercy and compassion and, by these actions, the defendant inflicted pain in a wanton manner, thereby exhibiting brutal and cruel behavior.

Having thus determined that section 5 — 8—1(a)(1)(b) was not unconstitutionally vague either on its face or as applied, we now address the defendant’s remaining contention that the circuit court abused its discretion when it imposed a sentence of natural life imprisonment. The defendant contends that his sentence of natural life imprisonment was an abuse of discretion when his age (he was 23 years of age at the time of the commission of the crime), his drug and alcohol abuse, his poor social or family background, his mental illness, and his negligible criminal history are considered. He argues that with a sentence of natural life imprisonment, he cannot possibly be restored to useful citizenship and that the circuit court did not consider his rehabilitative potential.

Before addressing the merits of the defendant’s contention, we note that both the State and the defendant, in their briefs, state that the defendant waived this issue as he failed to include this issue in his motion to withdraw his guilty plea. We do not find that the defendant waived this issue. The defendant filed a timely pro se motion to withdraw his guilty plea, and it is true that the defendant failed to raise the issue of excessive sentence in this motion. However, while a motion to withdraw a guilty plea is a prerequisite to an appeal, a defendant does not need to seek modification or reduction of his sentence in that motion to preserve this issue for review. People v. Ulmer (1987), 158 Ill. App. 3d 148, 510 N.E.2d 1296; People v. Joy (1987), 150 Ill. App. 3d 310, 501 N.E.2d 1325.

The standard for reviewing a sentence imposed by the ■ circuit court is whether the court abused its discretion, and if a re- H viewing court determines that there has been no abuse of the court’s discretion, the sentence cannot be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) A proper sentence is the result of a reasoned judgment based upon the circumstances of each case, and a circuit court judge is in a better position than a reviewing court to determine the appropriate punishment. (Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.) In fashioning an appropriate sentence, a court considers a defendant’s “credibility, demeanor, general moral character, mentality, social environment, habits, and age.” (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) In addition to these factors, a court must impose a sentence which takes into account the seriousness of the offense and the rehabilitative potential of the defendant. (Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.) Because of the responsibility and the delicate balancing of these considerations in imposing a sentence, a circuit court’s determination of an appropriate sentence is accorded great deference and weight. Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882.

Turning to the merits of the defendant’s issue, he claims that his youth and his rehabilitative potential must be considered when imposing a sentence; however, these factors are not the sole factors to be considered. (People v. Generally (1988), 170 Ill. App. 3d 668, 525 N.E.2d 106.) Also to be considered are the nature of the crime, the protection of the public, deterrence and punishment. (Generally, 170 Ill. App. 3d 668, 525 N.E.2d 106.) In this case, the court stated at the sentencing hearing that it considered the evidence presented at the hearing, the documents on file, the arguments of counsel, and the defendant’s statement to the court. As noted previously, the evidence presented at the sentencing hearing consisted of the testimony of Debbie Hildreth, the reports of two psychiatrists and one psychologist, a transcription of the defendant’s taped statement, and the presentence investigation report. This evidence revealed that the defendant, while mentally deficient, was still capable of understanding the criminality of his conduct. It was also established that the defendant had never worked and was incapable of doing so, and that the defendant drank and took illegal drugs even though he took medication to stabilize his mental illness. The presentence report showed that the defendant had a prior conviction for a felony theft for which he received probation. At the time of the commission of the murder, the defendant was still on probation for this offense. The record also contained evidence that the defendant committed a residential burglary the day after the murder; however, the disposition of this crime was not given.

The circuit court, at the sentencing hearing, stated:

“He [the defendant] was 23 years of age at the time the offense was committed; he selected a young victim who was mildly disabled with a hearing disability of some sort. He was able to select an abandoned house in an isolated area of the community; he enticed the young girl into this situation by promising her a new bicycle. His motive was the sexual exploitation of Ruth Ann Boner in some fashion, the precise nature of which is unclear from the evidence. It is also clear that the defendant strangled the victim[,] after disrobing her[,] with his bare hands and a coat hanger and his feet[,] of all things[,] until she was dead. It is obvious from this evidence that Mr. Barnhill has dangerous propensities, and it is necessary to protect the public from further criminal conduct by him. It is also necessary to deter others from committing similar offenses.”

Clearly, the court found that the defendant had enough presence of mind to conceive the murder and to execute it. The defendant knew that he had committed a criminal act and did not discuss the murder with anyone after he committed it. Instead, the day after the murder, he drank alcohol and committed another crime. The evidence of the murder supported the court’s finding that the murder was brutal and heinous. Therefore, we find that the circuit court did not abuse its discretion in imposing a sentence of natural life upon the defendanant.

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

Affirmed.

RARICK and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WOMBACHER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. SCHAEFER, Defendant-Appellant.
    Third District
    No. 3-88-0502
    Opinion filed August 24, 1989.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

Following a bench trial, the defendant, Michael J. Schaefer, was convicted of unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, pars. 1402(b), 1401(b)(2)). The trial court sentenced him to five years in prison. He appeals.

The record reveals that the defendant and codefendants Peggy Dublo and Cynthia Sterenberg were charged by the same information. On February 1, 1988, the court appointed Public Defender Albert Schmidt to represent the defendant. Schmidt subsequently represented both the defendant and codefendant Dublo at a preliminary hearing on February 4 and at arraignment on February 10. The record shows that Assistant Public Defender Michael Albert represented codefendant Dublo at all further proceedings, while Schmidt continued representing the defendant.

The evidence at trial established that the defendant, Dublo, and Sterenberg lived at the same residence in Morrison, Illinois. Police officer Andy Widener testified that he executed a search warrant at the residence on January 30, 1988. Upon entering the living room of the house, he observed the defendant sitting on the couch and Dublo lying on the floor. Underneath the couch, Widener found 23 paper packets which contained 4.6 grams of a white powdery substance that later tested positive for the presence of cocaine. Also under the couch, Widener found two scales and a Sucrets box which' contained 0.8 grams of a white substance that later tested positive for the presence of cocaine. In addition to the items found under the couch, Widener seized several items from the defendant’s upstairs bedroom. On the defendant’s stereo speaker, Widener found 4.1 grams of cocaine. On a shelf in the defendant’s bedroom closet, Widener discovered an unspecified amount of cocaine in a white, paper packet. In all, the police seized 9.7 grams of cocaine during the search.

Douglas Fowler, who lived directly across the street from the defendant, testified that during December of 1987 and January of 1988 he had observed suspicious activity at the defendant’s residence. He stated that on the weekends cars would park in front of the defendant’s house. From each car, one of the occupants would go into the house for about two or three minutes, then return to the car and drive away. On January 30, 1988, this had occurred nine times before the police conducted the search. Fowler stated that it was never the same car on any of the occasions. He believed that the cars would only stop if the front drapes of the house were 12 inches apart. If they were completely opened or closed, no cars would stop.

Codefendant Cynthia Sterenberg testified on behalf of the State that in December of 1987 she had seen a mirror on the dining room table near where the defendant and a person named Rick Westendorf were sitting. She believed the two men were “doing coke.” Sterenberg further testified that she warned Westendorf and the defendant not to bring drugs into the house.

Codefendant Peggy Dublo also testified on the State’s behalf. She stated that she saw cocaine in the house only once from the time she moved into the residence until the day the search warrant was executed. The cocaine was on the dining room table closest to Westendorf, who frequently stayed at the house. Sometime after she saw the cocaine, she told Westendorf to stop bringing drugs into the house. Dublo further stated that she heard Sterenberg yelling at Westendorf about the cocaine. However, Dublo did not know if Sterenberg’s comments were also directed at the defendant. Dublo testified that during the execution of the warrant the defendant stated that there was cocaine in the house and that they were going to get into trouble for it.

The defendant testified that the cocaine found in the Sucrets container was his. He further admitted that he had told Dublo during the execution of the search warrant that there was cocaine in the house. He stated that the 23 packets of cocaine found under the couch were not his and that they belonged to Westendorf. Regarding the cocaine found in his bedroom, the defendant claimed that he did not know it was there or how it had gotten there. He testified' that Westendorf had used his house to package cocaine. He further stated that Westendorf did not make a habit of packaging cocaine there after Sterenberg and Dublo told Westendorf not to bring cocaine into the house.

On appeal, the defendant argues that he was denied his right to the effective assistance of counsel. He contends that his counsel labored under a conflict of interest because of his previous representation of codefendant Dublo, who testified as a State witness at the defendant’s trial. The State initially argues that the defendant has waived this issue by failing to bring it to the attention of the trial court and by failing to adequately preserve the record.

We find that the instant issue has not been waived since no post-trial review of the alleged conflict was conducted by an independent attorney. (People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870.) We further find that the record has been adequately preserved in this case.

Turning to the merits, we note that it is fundamental that persons accused of a crime enjoy a sixth amendment right to the effective assistance of counsel. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708.) Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393.

The Illinois Supreme Court in People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30, recently had occasion to examine the relevant case law regarding attorney conflicts of interest. The Spreitzer court noted the existence of a per se conflict of interest rule applicable to cases where defense counsel has a tie to a person or entity who would benefit from a verdict against the defendant. In these types of cases the defendant, in order to secure a reversal of his conviction, need not show that his attorney’s actual performance was in any way affected by the existence of the conflict. People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393.

On the other hand, the Spreitzer court also noted a second class of alleged conflicts to which the per se rule does not apply. These conflicts have generally, although not exclusively, involved joint or multiple representation of codefendants. Multiple representation cases are not treated as creating a per se conflict, because to do so would put an end to multiple representation altogether, since a possible conflict inheres in almost every instance of multiple representation. (People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393.) In multiple representation cases, if the trial court is not apprised of the potential conflict, then reversal of the conviction will only be had upon a showing that an actual conflict of interest adversely affected counsel’s performance. This means that the defendant must point to some specific defect in his counsel’s strategy, tactics, or decision making attributable to the conflict. (People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30.) A defendant can show that a conflict of interest actually affected the adequacy of his representation by demonstrating that the joint representation of codefendants involved antagonistic or hostile defenses. (People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261; People v. Howard (1988), 166 Ill. App. 3d 328, 519 N.E.2d 982.) However, where no material hostility existed at trial between codefendants and the record presents no indication that the defense of either codefendant was inhibited by the joint representation, a reversal of a conviction is not required. People v. Jones (1988), 121 Ill. 2d 21, 520 N.E.2d 325.

Turning to the instant case, we find that it should be characterized as a multiple representation case since attorney Schmidt represented both the defendant and codefendant Dublo up until and including the arraignment. We also note that the alleged conflict in this case was not called to the attention of the trial court. Therefore, we will analyze the alleged conflict under the standard of whether an actual conflict adversely affected defense counsel’s performance. People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30.

The defendant contends that a conflict of interest existed at trial because of the possibility that his counsel’s ability to cross-examine and impeach Dublo was impeded by the ongoing duty to protect the prior attorney-client relationship. We recognize that a factor to be considered in deciding whether an actual conflict existed is the possibility that privileged information obtained from a witness might be relevant to cross-examination. (People v. Cunningham (1985), 107 Ill. 2d 143, 481 N.E.2d 722.) However, it is also true that the mere possession of confidential information does not preclude an effective cross-examination of a codefendant witness; furthermore, the burden of demonstrating the existence and materiality of the alleged confidential information lies with the defendant. (United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256.) Mere hypothetical or speculative conflicts will not suffice. People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157.

The defendant in the instant case offers only speculative and hypothetical ways in which his trial counsel’s performance might have been affected. The record shows, however, that the defendant’s trial counsel conducted an adequate cross-examination of codefendant Dublo. Further, Dublo offered no direct evidence incriminating the defendant which the defendant did not corroborate. In fact, much of Dublo’s testimony supported the defendant’s theory of innocence, which apparently was that Westendorf was responsible for bringing the cocaine into the house. This clearly was not a case where one defendant inculpated a codefendant in an attempt to exculpate himself. (See People v. Howard (1988), 166 Ill. App. 3d 328, 519 N.E.2d 982.) Accordingly, we find that the defendant has failed to show the requisite conflict of interest.

The defendant’s second contention on appeal is that his conviction for unlawful possession of a controlled substance should be vacated because it is a lesser included offense of unlawful possession of a controlled substance with the intent to deliver. (See People v. Martine (1984), 121 Ill. App. 3d 793, 460 N.E.2d 456, rev’d on other grounds (1985), 106 Ill. 2d 429, 478 N.E.2d 262.) The State argues that the defendant has waived this issue.

We agree with the State that the defendant has waived this issue by raising it for the first time on appeal. We further find that no plain error was involved. See People v. Boastick (1986), 140 Ill. App. 3d 78, 488 N.E.2d 326.

The defendant’s third argument on appeal is that the trial court erred in imposing a street value fine of $1,332 against him, because there was no evidence presented by the State as to the purity of the cocaine. He argues that section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1) requires evidence establishing the purity of the controlled substance involved in the particular case before the court may impose a street value fine. People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 522 N.E.2d 139.

We note that although the defendant contested the amount of the fine in the instant case, he did not claim at the sentencing hearing that the State was required to present evidence of the purity of the cocaine. It is axiomatic that alleged errors in sentencing must be brought to the trial judge’s attention or the errors are deemed waived on appeal. (People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.) Accordingly, we find that the defendant has waived any error in the imposition of the street value fine.

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

Affirmed.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT

text:
      In re ESTATE OF PHILLIP EDWARD CALLAHAN, a Disabled Person (Deborah Oughton, Guardian, Plaintiff-Appellant, v. John C. Parkhurst, Claimant-Appellee).
    Third District
    No. 3-89-0002
    Opinion filed September 7, 1989.

      Todd A. Smith, Philip H. Corboy, and Thomas A. Demetrio, all of Cor-boy & Demetrio, P.C., and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellant.
    Bartley, Fraser, Parkhurst & Hession, of Peoria (John C. Parkhurst, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The matter at issue in this appeal involves the measure of damages for a discharged attorney, and when a cause of action for those damages accrues to the attorney so discharged. We believe it is a matter of first impression for Illinois courts, and to fully understand the issue, a brief recitation of the factual background in which it arises is helpful.

On May 27, 1985, Phillip Callahan was injured in a highway accident and left totally disabled. Deborah Oughton, Phillip’s wife, was appointed guardian on behalf of Phillip, a disabled adult.

On May 29, 1985, Mrs. Oughton entered into a contingent fee contract with the law firm of Bartley, Parkhurst, Hession and Schroeder, to represent her in all matters arising from her husband’s accident. Pursuant to the contract, the attorney fees to be paid were to be 25% of any amount recovered for the ward by way of suit, settlement or in any other manner. The claimant in the instant action, John C. Parkhurst, was the attorney principally responsible for the representation.

On August 11, 1986, Mr. Parkhurst and his firm were discharged, by letter, as attorneys for the guardian and her ward. In August of that same year, the law firm of Corboy and Demetrio, P.C., formally replaced the Parkhurst law firm, and later that same month, the Parkhurst law firm filed this action as a claim for attorney fees. Subsequently, the Parkhurst law firm’s cause of action was assigned to John C. Parkhurst, individually.

This action for legal fees proceeded to trial before the underlying action arising from the automobile accident was adjudicated or settled. In the trial, the circuit court of Peoria County heard evidence that the claimant law firm rendered legal services to the guardian and her ward for more than a year. The Peoria County court determined that based upon the testimony, the claimant was entitled to $36,000 for legal services rendered, which was held to be presently due from the assets of the guardianship estate. The court further retained jurisdiction of the claimant’s action to determine any further fee due from any future recovery by the employer of Phillip Callahan through its workers’ compensation insurance carrier.

■The guardian and her ward appealed the circuit court decision seeking a reversal and an accompanying direction to delay further action on the issue of attorney fees until the occurrence of the contingency in the original fee contract. In the alternative, the guardian and her ward assert that the fees established by the circuit court were not supported by the evidence. Finally, the appellants urge that it was error to reserve jurisdiction over the attorney fees owing the claimant as a result of the workers’ compensation matter.

The briefs of both parties and our own review of the case law establish Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, as the leading case in Illinois governing the issue of fees for discharged attorneys. In that case, William D. Rhoades sustained an injury, while in the employ of the Norfolk and Western Railway Company. He considered filing suit against the railroad, and to that end he telephoned the law firm of Chapman and Chapman. An investigator associated with the law firm visited Mr. Rhoades at his home and, after some discussion, a retainer contract was signed authorizing the Chapman law firm to represent Rhoades for a 25% contingent fee. The next day, after a change of mind, Mr. Rhoades again telephoned the Chapman firm with instructions to not proceed with a lawsuit. Despite the client’s instructions, suit was filed along with a declaration of lien for attorney fees. When no explanation of this unauthorized lawsuit was forthcoming, Mr. Rhoades dismissed the Chapman firm as his attorney. Subsequently, the lawsuit, but not the lien claim, was dismissed, and Rhoades settled his claim against the railroad for $15,000. The adjudication of the lien claim was appealed to the Illinois Supreme Court. In its decision, the high court concluded the statutory prerequisites for maintaining the lien had not been met. Thus, recovery, if any, would be limited to the amount owed as a consequence of the attorney-client relation between Chapman and Rhoades.

The Rhoades court repeated what had been established law in Illinois: first, a client may discharge his attorney at any time with or without cause; and, second, the attorney so discharged is entitled to full contract fees if the dismissal was without cause. (Rhoades, 78 Ill. 2d at 227, 228.) Then, in departing from this established rule of Illinois law, the Rhoades court followed the reasoning of the California Supreme Court in Fracasse v. Brent (1972), 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385. In summarizing that reasoning, the Illinois court reported;

“[T]he client’s right to discharge his attorney at will is not a breach of the contract but a term of the contract implied by law because of the special relationship between attorney and client and that it would be anomalous and unjust to hold a client liable in damages for exercising that implied right. The court rejected the argument that it would be too difficult to ascertain the amount of recovery under a quantum meruit theory, since such calculations are often made in other situations. It also rejected the argument that the abandonment of the rule granting attorneys discharged without cause full contract fees would encourage unjustified discharging of attorneys by clients motivated solely by a desire to avoid attorney’s fees. In most instances, clients would hire another attorney and would still be liable for fees; in cases in which an attorney who has done much work is fired immediately before a settlement is reached, the factors involved in determining a reasonable fee would justify a finding that the entire contract fee is the reasonable value of services rendered. The California court concluded that its holding protected the client’s right to discharge the attorney and also acknowledged the attorney’s right to fair compensation for work performed.” (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 229, 230, 399 N.E.2d 969.)

It is clear that the Rhoades court adopts for Illinois one prong of the two-pronged holding in Fracasse. It is not evident that the Rhoades court adopts both parts of the Fracasse decision. In Fracasse, the court held

“that an attorney discharged with or without cause is entitled to recover the reasonable value of his services rendered to the time of discharge. *** [Also,] the cause of action to recover compensation for services rendered under a contingent fee contract does not accrue until the occurrence of the stated contingency.” (Fracasse v. Brent, 6 Cal. 3d at 792, 494 P.2d at 14-15, 100 Cal. Rptr. at 390-91.)

The Rhoades court did not address the issue of when the cause of action to recover compensation accrued, in part because under the facts in Rhoades, by the time the fee issue was litigated, the contingency, the settlement for $15,000, had occurred. That differs from the facts faced by the California court in Fracasse. In the California case, the personal injury action was still pending and the contingency had not occurred. In resolving the first issue raised on appeal, we must determine, as a matter of first impression, when the cause of action accrues in Illinois under these facts.

The prevailing policy consideration in both Rhoades and Fracasse is explained in the latter decision:

“The relation of attorney and client is one of special confidence and trust and the dignity and integrity of the legal profession demand that the interests of the client be fully protected. *** Without public confidence in the members of the legal profession which is dependent upon absolute fairness in the dealings between attorney and client, courts cannot function in the proper administration of justice. And inherent in the relationship between attorney and client is the fact that the client must rely almost entirely upon the good faith of the attorney who alone can make an informed estimate of the value of the client’s legal right and of the expense and effort necessary to enforce it. These considerations have given rise to the generally accepted rule that a client may discharge his attorney at any time with or without cause. *** But that is not enough. The right to discharge is of little value if the client must risk paying the full contract price for services not rendered upon a determination by a court that the discharge was without legal cause. The client may frequently be forced to choose between continuing the employment of an attorney in whom he has lost faith, or risking the payment of double contingent fees equal to the greater portion of any amount eventually recovered.” (Fracasse v. Brent, 6 Cal. 3d at 789, 494 P.2d at 12, 100 Cal. Rptr. at 388.)

We must have a rule, therefore, that does not force on the client the choice — which is really no choice — of continuing with an attorney in whom he has no confidence or of subjecting himself to unaffordable attorney fees. The same rule should insure “against unscrupulous defendants who might induce plaintiffs to discharge their attorneys, even after the attorney has expended time and effort, in order to avoid having to pay plaintiffs a larger settlement.” Rhoades, 78 Ill. 2d at 228.

It is clear that under some attorney-client relationships, the cause of action of the discharged attorney for fees accrues without any intervening contingency. In Simon v. Auler (1987), 155 Ill. App. 3d 1000, 508 N.E. 2d 1102, the court allowed a dismissed attorney to recover from a retainer on deposit — an ascertainable fund — even though the dissolution action he was retained to prosecute was never filed after a reconciliation of the parties. A similar rule was followed in In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 420 N.E.2d 161. While the attorney-client relationships in Simon and Reczek do not provide for payment of fees on the occurrence of a contingency, neither, we would argue, does the contract in Rhoades or the case at bar. The client’s right to discharge his attorney at will is not a breach of contract, but a term of the contract implied by law because of the special relationship between attorney and client. (La Rocco v. Bakwin (1982), 108 Ill. App. 3d 723, 439 N.E.2d 537.) In exercising that right, the client terminates the contract. (Fracasse, 6 Cal. 3d at 790, 494 P.2d at 13, 100 Cal. Rptr. at 389.) While the discharged attorney cannot claim damages as measured by the contract, because the contract has been terminated according to its implied terms, so too the client should not be shielded by the contract unless an overriding public policy concern intervenes. The client should not be permitted to forestall payment of his obligations in reliance on a contract which has been terminated, unless this creates an impediment to the client’s preeminent right to discharge his attorney.

We believe a more flexible rule is appropriate to determine when the discharged attorney may prosecute his claim for fees, more flexible, that is, than the rule set forth in Fracasse. In application of the rule, courts should be guided by the public policy considerations set forth in Rhoades. We opt for a more flexible rule than the Fracasse court because the discharged attorney, who invested valuable time and talent on his client’s behalf, should not necessarily be denied any recovery where his successor is inept. This is particularly true where a ready source of payment exists and the client’s right to discharge is not impeded. This more flexible rule has recently been adopted by courts of other jurisdictions, which recognize the inherent unfairness of binding the attorney to the terms of the terminated agreement but not the client. Sohn v. Brockington (Fla. App. 1979), 371 So. 2d. 1089.

Quantum meruit is a legal -remedy, which is included under the umbrella of quasi-contract, the general category of claims for the redress of unjust enrichment. (A. Farnsworth, Contracts 99 (1982).) In fashioning such remedies, and to prevent unjust enrichment, courts must have the discretion necessary to tailor remedies that are just under the factual circumstances. The court can do that in adjudicating the claim and in monitoring its collection, where, as here, the ward's estate presents an ascertainable fund for satisfaction of the claim. We hold the circuit court made no error in proceeding to adjudicate the claim for fees.

We also find sufficient evidence in the record to support the trial court’s award of $36,000 in fees for services rendered. The record contains an extensive recitation by Mr. Parkhurst of the services performed on behalf of the guardian and her ward. This testimony was corroborated by documentation from the law firm files. Judge Voelker, who presided over this matter in the circuit court, was in a superior position to assess the value of the services rendered based on the testimony and the exhibits offered. (Reed Yates Farms, Inc. v. Yates (1988), 172 Ill. App. 3d 519, 526 N.E. 1115.) The record on appeal amply supports the assessment he made.

Finally, the circuit court reserved judgment on the award of attorney fees based on the outcome of the workers’ compensation proceeding. Payment of attorney fees for representation under the Workers’ Compensation Act is to be determined by the Illinois Industrial Commission. (Ill. Rev. Stat. 1987, ch. 48, par. 138.16a.) Accordingly, that portion of the trial court order relating to the compensation claim is erroneous and must be reversed.

For the reasons set forth, the order of the circuit court of Peoria County is affirmed in part and reversed in part.

Affirmed in part and reversed in part.

HEIPLE and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN CHRISTY, Defendant-Appellant.
    Third District
    No. 3-88-0741
    Opinion filed September 5, 1989.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

Following a stipulated bench trial, the defendant, Ben Christy, was convicted of armed violence and kidnapping (Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 2, 10 — 1). The trial court sentenced him to concurrent extended-term sentences of 60 years in prison for armed violence and 14 years in prison for kidnapping. The defendant appeals.

The record shows that the victims, 14-year-old Shad Baldwin and 15-year-old Doug Hanabarger, were camping in a small tent on June 5, 1988, when they were awakened around 2 a.m. by the defendant. The defendant threatened them with a crowbar, overpowered them, and handcuffed them. He then took them about 450 feet from their tent, handcuffed them to a tree, and secured their feet to two dog chain anchors. Later, he packed their equipment and forced them to carry it, while handcuffed and tied with ropes, to a storage building about 1.7 miles away. Upon arriving at the storage building at dawn, he ordered them to take off their clothes and threatened to kill them if they did not comply. During the course of the day he held a knife to Hanabarger’s throat and threatened to kill both boys on several occasions. He indicated to them that he had planned their abduction. He also talked about sex and told them that he had previously molested young children. Sometime in the evening of the same day, the defendant placed duct tape over their mouths and left to get some bread and water. The boys were able to work the tape loose and began yelling for help. A woman in a passing car stopped, discovered them, and called the police, who apprehended the defendant when he returned with the bread and water.

The defendant appeals his conviction and sentence for armed violence. Initially, he argues that the application of the armed violence statute in this case results in an unconstitutionally disproportionate sentencing scheme, since kidnapping, a lesser-included offense of aggravated kidnapping, is used as the predicate felony for armed violence. Second, he argues that principles of statutory construction require that the more specific and more lenient aggravated kidnapping charge take precedence over the armed violence charge. We will confine our discussion to the defendant’s first contention, since we find it dispositive of this issue.

We initially note that kidnapping, a Class 2 felony, is a lesser-included offense of aggravated kidnapping, a Class 1 felony, since aggravated kidnapping is a separate offense from kidnapping and requires the same elements as kidnapping plus the additional element of being armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 10 — 1, 10 — 2; People v. Roberts (1979), 71 Ill. App. 3d 124, 389 N.E.2d 596.) On the other hand, armed violence predicated on kidnapping is a Class X felony and requires exactly the same elements as aggravated kidnapping. Therefore, in the instant case, through the application of the armed violence statute, kidnapping is in effect enhanced to a Class X felony and is punished more severely than the greater felony of aggravated kidnapping.

The situation presented in this case is similar to that presented in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, and People v. Wade (1988), 167 Ill. App. 3d 921, 522 N.E.2d 285. In Wisslead, the defendant was charged with unlawful restraint and with armed violence based on the underlying felony of unlawful restraint. With the introduction of a weapon into the situation, unlawful restraint was enhanced to a Class X felony through the use of the armed violence statute. However, kidnapping was enhanced to aggravated kidnapping and was only punishable as a Class 1 felony. The defendant argued that unlawful restraint, a Class 4 felony, was a less serious offense than kidnapping, a Class 2 felony, and should therefore be punished less severely. The Illinois Supreme Court noted the constitutional mandate that all penalties should be determined according to the seriousness of the offense (Ill. Const. 1970, art. I, §11) and explained that this provision would be violated if the penalty prescribed for an offense was not as great or greater than the penalty prescribed for a less serious offense. The court then held that the sentences imposed for the offense of armed violence based on unlawful restraint with a category 1 weapon and for the more serious offense of aggravated kidnapping were unconstitutionally disproportionate.

In Wade, the defendant was charged with attempted armed robbery and with armed violence based on the underlying felony of intimidation. He argued that the armed violence statute was unconstitutionally applied where intimidation, a lesser-included offense of armed robbery, was used as the predicate felony for armed violence. This court noted in Wade that both intimidation and attempted robbery had been classified by the legislature as Class 3 felonies. However, when the defendant possessed a weapon while committing the crime, intimidation was enhanced to a Class X felony through the use of the armed violence statute, whereas attempted robbery became attempted armed robbery and was a Class 1 felony. We found this to be an unconstitutionally disproportionate sentencing scheme since identical facts could render two different conclusions.

We find that the reasoning set forth in Wisslead and Wade controls the outcome of the instant case. We are aware that the fourth district in People v. Moritz (1988), 173 Ill. App. 3d 498, 527 N.E.2d 1102, recently reached the opposite conclusion. In Moritz, the defendant argued that his armed violence conviction predicated on kidnapping should be vacated because it involved exactly the same elements as the offense of aggravated kidnapping. The court rejected the defendant’s argument and found Wisslead and Wade distinguishable in that the underlying felony for armed violence and aggravated kidnapping was the same, kidnapping.

We choose not to adopt the reasoning set forth in Moritz. We find insignificant the fact that the armed violence and aggravated kidnapping convictions were based on the same underlying felony. The supreme court’s reasoning in Wisslead and our reasoning in Wade did not rest on that distinction. Aggravated kidnapping is a more serious offense than the lesser-included offense of kidnapping. Yet, under the circumstances of the instant case, kidnapping is being elevated to a more serious crime than aggravated kidnapping. It is illogical that identical facts can render two different conclusions. We find that the result is an unconstitutionally disproportionate sentencing scheme. We therefore vacate the defendant’s armed violence conviction and sentence.

The next issue we address is whether the trial court erred in imposing an extended-term sentence for kidnapping where kidnapping was not the most serious offense of which the defendant was convicted. The State concedes that the 14-year extended-term sentence imposed upon the defendant for kidnapping was improper and must be vacated. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(5); People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) We agree and therefore reduce the defendant’s sentence for kidnapping to the maximum nonextended term of seven years in prison. 107 Ill. 2d R. 615(b)(4).

The judgment of the circuit court of Whiteside County convicting the defendant of armed violence and sentencing him to 60 years in prison is vacated, and the cause is remanded for resentencing based on the offense of aggravated kidnapping. The defendant’s conviction for kidnapping is affirmed, but his 14-year extended-term sentence is reduced to the maximum nonextended term of seven years.

Vacated in part; affirmed in part and remanded.

STOUDER and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL E. CHANEY, Defendant-Appellant.
    Third District
    No. 3 — 88—0759
    Opinion filed September 5, 1989.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Walter P. Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Michael E. Chaney, pled guilty to one count of unlawful delivery of more than 30 but less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 705(d)). The trial court sentenced him to a term of five years in prison, ordered him to pay a mandatory fine plus court costs, and ordered him to pay $225 in restitution. The defendant filed a motion to withdraw his guilty plea, which the court denied. He now appeals, arguing that the trial court erred in ordering him to pay $225 in restitution.

The State agrees with the defendant’s position. The only fact relevant to the issue is that the $225 restitution figure was the amount the Department of Criminal Investigation of the Illinois State Police paid the defendant for the cannabis its agent purchased from him.

Section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6) provides that the trial court may in certain instances order a convicted defendant to pay restitution to his victim in an amount not to exceed the actual out-of-pocket expenses or loss to the victim proximately caused by the defendant’s conduct. However, where public money is expended in pursuit of solving crimes, the expenditure is part of the investigatory agency’s normal operating costs and the agency is not considered a “victim” for purposes of restitution. (People v. Evans (1984), 122 Ill. App. 3d 733, 461 N.E.2d 634.) A trial court’s improper restitution order is void and may be attacked at any time. People v. Winchell (1986), 140 Ill. App. 3d 244, 488 N.E.2d 620.

We agree with the defendant and the State that the instant restitution award to the department was improper, because an investigatory agency is not a victim for purposes of restitution. Further, as noted in Winchell, the defendant is not barred from attacking the order on appeal, despite his failure to object to it in the trial court. Accordingly, we vacate the $225 restitution order and affirm the remainder of the defendant’s conviction and sentence.

The judgment of the circuit court of Whiteside County insofar as it orders the defendant to pay $225 in restitution is vacated; the remainder of the circuit court’s judgment is affirmed.

Affirmed in part and vacated in part.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
      In re ESTATE OF CLARA S. FRY, Deceased (George D. Fry et al., Coex’rs, Petitioners-Appellants, v. David Arndt, Respondent-Appellee).
    Third District
    No. 3 — 88—0696
    Opinion filed September 7, 1989.

      Louis E. Neuendorf, of Louis E. Neuendorf & Associates, of Sandwich, for appellants.
    Bruce M. Konzelman, of Codo, Bonds, Zumstein & Konzelman, P.C., of Joliet, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The petitioners, George D. Fry and Louis E. Neuendorf, as coexecutors of the estate of Clara S. Fry, filed a petition for the equitable apportionment of estate taxes, attorney fees, and expenses of administration against the respondent, David Arndt, who is the beneficiary of an inter vivos trust established by the decedent. The respondent filed a motion to dismiss the petition. Following a hearing on the respondent’s motion, the trial court granted it. The petitioners appeal.

Taken with this appeal is the petitioners’ motion to amend the record pursuant to Supreme Court Rule 329 (107 Ill. 2d R. 329). The motion requests that the Federal tax return for Clara S. Fry be included in the record on appeal. The respondent does not contest the motion and in fact in his brief relies upon the information contained in the tax return. Because we find that this document would be beneficial to our understanding of the case and would not prejudice the respondent, the petitioners’ motion is granted. See People v. Guest (1986), 115 Ill. 2d 72, 503 N.E.2d 255.

The record reveals that on November 18, 1971, Clara S. Fry executed a deed in trust conveying to herself as trustee approximately 100 acres of land located in Will County, Illinois. Upon her death, a designated successor trustee was to then convey the property to the respondent. On August 8, 1986, Clara executed a will designating her stepson George Fry as the sole beneficiary. The will also contained a specific bequest of $3,000 to her church and referred to the existence of the inter vivos trust and the respondent’s interest in that trust.

The record further shows that after Clara’s death, the trustee conveyed the property to the respondent pursuant to the deed in trust. Although the property was not a probate asset, it was subject to Federal estate tax and valued at $700,000. It was the only nonprobate asset.

The will was subsequently admitted to probate. It contained the following language relevant to this appeal:

“ARTICLE ONE
The expense of my last illness, my funeral and the administration of my estate shall be paid out of the principal of my residuary estate.
ARTICLE TWO
All estate and succession taxes, including interest and penalties payable by reason of my death, shall be paid out of and be charged against the principal of my residuary estate, without reimbursement from any person.”

The value of the assets constituting the residue of the estate was $93,469.16. The last illness, funeral, and administration expenses totalled $98,485.45. There was also the specific preresiduary legacy of $3,000 and a preresiduary bequest of personal property shown on the decedent’s Federal estate tax return as having a value of $2,500. Therefore, the last illness, funeral, and administrative expenses, as well as the specific preresiduary cash legacy, totalled $101,485.45. Payment of these expenses would exceed the value of the residuary estate and would leave no funds for the payment of the $158,938.32 in Federal estate taxes and the $34,011.09 in State taxes.

The petitioners filed a petition seeking equitable apportionment of Federal and Illinois estate taxes owed by the estate, along with the attorney fees and expenses of administration incurred on behalf of the nonprobate asset. The respondent filed a motion to dismiss the petition, which was granted by the trial court. In dismissing the cause, the court found that article two of Clara S. Fry’s will clearly and unequivocally expressed her intent to waive on behalf of her estate any claim or right to reimbursement or apportionment of taxes from the respondent as beneficiary of the nonprobate asset. The court also found that this intent was controlling and that equitable apportionment therefore could not be allowed.

The petitioners argue on appeal that the trial court erred in dismissing their petition for equitable apportionment.

Initially, we note that Illinois does not have an equitable apportionment statute. Illinois courts have, however, consistently applied the doctrine of equitable apportionment to intestate and testate estates, thereby permitting the apportionment of Federal estate taxes among recipients of probate and nonprobate assets. (Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662; In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266.) Equitable apportionment will not be allowed, however, as to nonprobate assets where the testator has expressed a clear intention to the contrary. Horwitz v. Ritholz (1984), 125 Ill. App. 3d 193, 465 N.E.2d 642.

The petitioners in the instant case concede that the decedent’s will clearly and unambiguously stated that the taxes owed by her estate were to be paid from the residuary estate and without reimbursement from anyone. They argue, however, that equitable apportionment should nonetheless be applied in this case because the fund from which the taxes were to be paid has been exhausted. In support of this, the petitioners cite several cases from other jurisdictions where equitable apportionment was allowed when the designated fund for payment was exhausted. The petitioners allege that no Illinois cases have addressed this issue. We note, however, that this issue was addressed by the first district in In re Estate of Wheeler (1965), 65 Ill. App. 2d 201, 213 N.E.2d 35. We further note that Illinois case law is controlling as to equitable apportionment issues in Illinois estates. Riggs v. Del Drago (1942), 317 U.S. 95, 87 L. Ed. 106, 63 S. Ct. 109.

In Wheeler, the testator, prior to the execution of his will, created a revocable inter vivos trust, the corpus of which was to vest in Russell Owens upon the settlor’s death. The testator then executed a will which provided that all taxes were to be paid out of the principal of the estate and that any right to recover the paid taxes from any person was waived. Although the trust was not a probate asset, it was subject to an Illinois inheritance tax. Owens filed a petition to have the executor pay the inheritance tax assessed on the inter vivos trust. The executor filed an answer alleging that the assets of the estate were insufficient to pay in full the specific bequests of the will and that the residuary legatees would receive nothing. He also alleged that if required to pay the tax on the inter vivos trust, the specific legatees would suffer a further reduction.

The first district nonetheless held that a testator may shift the payment of taxes and that his intention to do so, if indicated by appropriate language in his will, is controlling. (Wheeler, 65 Ill. App. 2d at 205, 213 N.E.2d at 37.) Therefore, even though there was a failure of the residuary, the direction as to the waiver of recovery from non-probate assets was clear and the nonprobate assets were not attachable for the payment of the tax. Wheeler, 65 Ill. App. 2d at 208, 213 N.E.2d at 38.

In the instant case, the decedent’s will clearly states, as the petitioners concede, that the taxes are to be paid from the residuary estate, without reimbursement from any person. We note that the primary objective in construing a will is to ascertain and give effect to the intentions of the testatrix. (In re Estate of Fenton (1982), 109 Ill. App. 3d 57, 440 N.E.2d 222.) The intent of Clara Fry as expressed in her will is clear. She intended that the taxes be paid from the residuary estate and not from the nonprobate asset received by the respondent. Therefore, as in Wheeler, the doctrine of equitable apportionment cannot be applied here and thus the respondent cannot be required to share in the taxes and expenses of the estate. We note that although the residuary estate will be exhausted, there are ample assets, totalling $415,969.10, in the probate estate to pay the Federal estate taxes and the expenses of administration.

The decision of the circuit court of Will County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    ANTHONY WASIELEWSKI, Plaintiff-Appellant, v. THE HAVI CORPORATION, f/k/a The Perlman-Rocque Company, Defendant-Appellee.
    Third District
    No. 3 — 89—0003
    Opinion filed September 7, 1989.

      Bambrick & Bambrick, P.C., of Lemont (Thomas A. Bambrick, of counsel), for appellant.
    Katten, Muchin & Zavis, of Chicago (Matthew B. Schiff, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court;

Anthony Wasielewski appeals from the summary judgment of the circuit court of Will County, holding that he is precluded by the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) from recovering damages in a negligence action against the Havi Corporation, f/k/a the Perlman-Rocque Company (Perlman-Rocque). Wasielewski was hired by Operations Services Systems (OSS) to assist it in providing on-site maintenance and sanitation services to Perlman-Rocque, which is a food distribution company located in Lemont, Illinois. In the course of his employment, Wasielewski suffered an injury, and he obtained a workers’ compensation award against OSS. Wasielewski then brought this common law negligence action against Perlman-Rocque. In response, Perlman-Rocque filed its affirmative defense and motion for summary judgment asserting that Wasielewski was a loaned employee and that he was, therefore, barred under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) from bringing such an action. After the circuit court of Will County granted Perlman-Rocque’s motion for summary judgment, Wasielewski brought this appeal, arguing that there exists a genuine issue of material fact regarding Wasielewski’s status as a loaned employee, which should have precluded the circuit court’s entering summary judgment. We affirm.

The Workers’ Compensation Act provides that the right of an employee who is covered by its provisions to recover damages for an injury sustained in the line of his employment duties is limited to recovery under its provisions, thus precluding any common law or other statutory right to recover damages from the employer. (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).) This limitation encompasses an employee’s rights vis-a-vis either his lending (first) or his borrowing (second) employer. Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 848, 502 N.E.2d 341, 344.

The issue in this case is whether Wasielewski’s status as a loaned employee was properly decided as a matter of law. Ordinarily, the issue of loaned employee status is determined by inquiry into whether the second employer had the exclusive right to direct and control the manner in which the employee performed his work and whether there existed a contract of hire between that employer and employee. (See A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 348, 412 N.E.2d 477, 481; Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 123, 171 N.E.2d 60, 63; Merlo v. Public Service Co. (1942), 381 Ill. 300, 320, 45 N.E.2d 665, 676.) Such inquiry is unnecessary, however, where it otherwise appears that a substantial part of the first employer’s business involves “hiring, procuring or furnishing employees to or for other employers operating under and subject to the provisions of [the Workers’ Compensation Act] for the performance of the work of such other employers and [paying] such employees their salary or wages notwithstanding that they are doing the work of such other employers ***.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)4.) Under such circumstances the Workers’ Compensation Act provides that such an employer “shall be deemed a loaning employer within the meaning and provisions of” the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(a)4.) It accordingly follows that under such circumstances the employer who receives an employee from such an employer is a “borrowing employer,” and the subject employee is a “loaned employee” as a matter of law. Evans, 150 Ill. App. 3d at 847-49, 502 N.E.2d at 343-44.

In this case there is no question that OSS was in the business of “hiring, procuring or furnishing employees *** for the performance of the work of” other employers, including Perlman-Rocque. Wasielewski attempts to create a question of fact by his assertion that OSS was not in the business of providing employees to other businesses, but rather in the business of providing services performed by OSS employees at various sites owned by other businesses. We conclude, however, that Wasielewski’s assertion provides merely an alternative description for the same result, and fails, therefore, to create a question of fact.

Additionally, there is no question in this case that Perlman-Rocque is an employer operating under and subject to the provisions of the Workers’ Compensation Act; nor is there any question that OSS paid employees, including Wasielewski, despite the fact that such employees were doing the work for other employers. Thus, it appears that, in this case, OSS is a loaning employer, Perlman-Rocque is a borrowing employer, and Wasielewski is a loaned employee as a matter of law, and the circuit court did not err, therefore, in deciding the case via summary judgment. We accordingly affirm the judgment of the circuit court of Will County.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE HEIPLE

text:
    DONALD D. KNOWLES et al., Plaintiffs and Counterdefendants-Appellees, v. WESTBROOK BUILDERS, LTD., Defendant and Counterplaintiff-Appellant.
    Third District
    No. 3-88-0709
    Opinion filed September 12, 1989.

      Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Thomas R Wilson, of counsel), for appellant.
    Davis, Varsek & Dystrup, P.C., of Joliet (Scott M. Hosier, of counsel), for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiffs Donald and Judith Knowles contracted with defendant Westbrook Builders, Ltd., for defendant to build a single-family residence on a specified lot in Joliet, Illinois, for $166,935 plus extras. The contract was signed on May 19, 1986, with construction to begin within 21 days thereafter, and construction to be completed within 150 days after it was begun. Plaintiffs obtained a construction loan at a Joliet bank. The bank was to make four separate payments as construction progressed. Under the terms of the contract, construetion should have been completed and the final payment made by early November 1986.

In fact, construction began behind schedule on June 23, 1986. The first progress payment by the bank was not called for by or paid to defendant until October 1986. The house was nowhere near completion by mid-November 1986. Workmanship on the house would generously be described as slovenly. Nonetheless, Roger West, president of Westbrook Builders, promised plaintiffs that the house would be ready to move into by Thanksgiving. When that deadline passed with no discernible progress or improvement, West promised Christmas, then Valentine’s Day, 1987. Plaintiffs agreed to the requested extensions each time until March 1987. They then contacted the inspections department from the City of Joliet. City inspectors found that the house did not conform to the city construction code in several respects, including plumbing, fireplace chimneys, and attachment of brick to house. The contract specified that all materials would be of standard quality, the construction accomplished in a workmanlike manner, and that the house would conform to applicable city codes. From the evidence, including the many pictures which we have carefully examined, it is clear that the materials were not, the construction was not, and the house did not.

After conferences with the city inspectors, West promised plaintiffs in March that defendant would correct all the problems. However, he told coplaintiff Donald Knowles at the construction site, “What you see is what you get.” Finally, on April 1, 1987, 138 days after the contractual completion date, plaintiffs ordered defendant off the jobsite and directed the bank not to make the fourth and final payment for the construction.

Plaintiffs then filed suit alleging breach of contract for failure of defendant to complete the house on time in conformity with applicable building codes and in a workmanlike manner. Defendant counterclaimed, alleging that plaintiffs prevented it from completing the contract and alleging that plaintiffs improperly withheld the last of the four payments due it under the contract.

A jury returned a verdict in favor of the plaintiffs on their complaint with damages of $58,000, and in favor of plaintiffs on defendant’s counterclaim. Defendant took the instant appeal after denial of its post-trial motion. We affirm.

On appeal, defendant does not contest the characterization of its workmanship or the untimeliness of its performance. Instead, it raises three issues related to: (1) waiver of timeliness by plaintiffs; (2) admissibility of certain evidence on damages; and (3) impeachment of the jury’s verdict.

Defendant first contends that plaintiffs prevented defendant from finishing the house under the contract and therefore cannot maintain the instant action for breach of contract. Westbrook further asserts that plaintiffs’ permitting it to work on the house after the contractual deadline for completion had passed constituted a waiver of the deadline. Therefore, plaintiffs could not force defendant off the job-site without giving it a reasonable opportunity to perform the contract.

Defendant principally relies on Gamm Construction Co. v. Townsend (1975), 32 Ill. App. 3d 848. Gamm was a subcontractor employed by the principal contractor, Richards, in construction of a house for Townsend. Gamm’s work was to be completed in 70 days. Richards ordered Gamm off the construction site after the work was not completed in 116 days. Gamm won a judgment in the trial court for $10,500, the value of its labor and materials in the job. As to the contractor’s contention that Gamm had breached the contract by failing to complete the work on time, the court found that the contractor had caused the delay by changing the specifications several times, thus rendering it impossible to complete the contract on time. Therefore, Gamm stands for the rule that when a party prevents performance of a contract, that party cannot recover for nonperformance by the other party.

In the instant case, deciding whether the owners’ conduct prevented completion of the contract was a question for the trier of fact. Unlike Gamm, there was plenty of evidence to support the jury’s conclusion that the plaintiffs did all they could to enable the defendant to perform. Rather, it was the defendant’s delay in construction and faulty workmanship that justified the plaintiffs in firing the defendant and stopping payments.

Moreover, there is evidence in this record which, if believed by the jury, would lead to the conclusion that defendant never intended to remedy the building code violations and other defects.

Defendant next contends that the trial court erroneously admitted evidence of diminution of market value of the house. It contends that the proper measure of damages where performance of the contractor is substantial but not complete is the cost of correction and completion, and not the change in market value. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668.) Brewer involved a house which was not substantially complete, but which was treated as such by the court because of waiver by the plaintiff. In such a situation, Brewer held, the proper measure of damages is the cost of correcting defects or completing the construction. Damages based on these factors were properly awarded in Brewer.

However, another element of the damages in Brewer was for defects of workmanship which would not be repaired “without prohibitive damage to the house.” The proper measure for these damages is lost value of the house. (Brewer, 42 Ill. App. 3d at 679.) Both the cost of correcting defects and omissions, and the lost value of the house, can properly be elements of damage in the same case.

But defendant has assumed a conclusion — that it substantially performed on the construction contract — which the jury was not obligated to reach. The trier of fact could have concluded that defendant’s performance was not substantial. This is also a question for the trier of fact. Whether the owner has received the building and enjoyed the benefits is one important factor in determining whether there has been substantial performance. (Joray Mason Contractors, Inc. v. Four J’s Construction Corp. (1978), 61 Ill. App. 3d 410.) Here, plaintiffs have not moved into or had use of the residence.

If performance was not substantial, then the only measure of damages would be lost value of the property. (Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619.) Plaintiffs were entitled to present evidence on either or both the theories of cost of repair or lost value.

Plaintiffs called three expert witnesses on damages. Edward Batis, a real estate appraiser, testified both on lost value and cost of repair. He stated that there was no category in which to describe the workmanship on this house because it was so poor. He also estimated the fair market value of the house as it was and the fair market value of the house if it had been done in a good and workmanlike manner.

Edward Mattox testified as to the quality of workmanship and the cost of repairing the house. Mattox gave specific figures underlying an estimated cost of $110,000 to repair. He also stated that in a house built as poorly as this, other defects may appear and the cost could be $20,000 to $30,000 higher than the figure he quoted.

Architect Robert Russ testified that the chimneys were structurally unsound and had to be replaced, that all the brickwork needed to be replaced due to failure to tie it in properly, that the front porch had to be replaced for structural reasons, and that all of the exterior siding on the house needed to be replaced. Thus, there was a sufficient foundation for testimony on lost value.

Finally, the defendant seeks to impeach the verdict of the jury by presenting two unsigned affidavits which purportedly are statements of two jurors. The statements assert that the jury was confused about what would happen to the money held in escrow. Defendant claims that it is entitled to a new trial as a result of that confusion.

Such statements are inadmissible. A jury may not impeach its own verdict by affidavit or testimony as to motive, method, or process by which a verdict was reached. Nor can the jury or a party challenge the verdict by explaining the basis for a verdict or asserting that the jury was mistaken. Chalmers v. City of Chicago (1982), 88 Ill. 2d 532.

The decision of the trial court is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.