author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN D. GOODEY, Defendant-Appellant.
    Fourth District
    No. 4—91—0605
    Opinion filed April 15, 1992.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1991, a jury convicted defendant, Stephen D. Goodey, of delivery of a controlled substance (10 or more segregated parts of an object containing in them any amount of lysergic acid diethylamide (LSD)), in violation of section 401(a)(7)(ii) of the Illinois Controlled Substances Act (Act), and criminal drug conspiracy, in violation of section 405.1(a) of the Act (Ill. Rev. Stat. 1989, ch. 56x/2, pars. 1401(a)(7)(ii), 1405.1(a)). The trial court sentenced defendant to 7x/2 years in prison, a street-value fine of $300, and assessed a laboratory fee of $50. Defendant appeals, arguing that (1) section 401(a)(7)(ii) of the Act is unconstitutionally vague, (2) the State failed to prove him guilty beyond a reasonable doubt, (3) he is entitled to credit against his $300 street-value fine for the time he spent in the county jail, and (4) he is entitled to a new sentencing hearing.

We affirm and remand with directions.

I. Facts

Rick Miller, a Sangamon County deputy sheriff, was the State’s sole witness at defendant’s trial. Miller had been assigned for approximately four years to a United States Drug Enforcement Agency (DEA) task force operating in central Illinois. Miller had approximately 14 years of experience as an undercover officer.

On June 13, 1990, Miller arranged a meeting with defendant, Bill Stevens, Denise Niteuski, and Miller’s informant at an address on Buena Vista Drive in Decatur for the purpose of buying LSD. The informant introduced Miller to the others present. Miller and defendant then talked openly in everyone’s presence about Miller’s interest in purchasing methenamine. Defendant said he had to go to work and led Miller to a bedroom to show him some crystals that defendant purported to be methenamine. Miller agreed to purchase the crystals from defendant and gave him $500. A later test revealed that this substance was not methenamine, but instead a noncontrolled substance Miller identified as “turkey.”

After making this purchase, Miller told defendant that Miller understood defendant had some LSD for sale. Defendant responded that he had to go to work and Miller would have to talk to his “partner” about the matter, explaining that “his partner” also had LSD for sale. Miller testified that the “partner” defendant was referring to was Stevens.

At that point, Miller, Stevens, and the informant started negotiating for the purchase of LSD. They reached an agreement and then determined that either Stevens would have to get the LSD from the house in which he lived on Evandale Street in Decatur and return to the Buena Vista house, or Miller would have to go to the Evandale house with Stevens. Defendant and Niteuski also resided at the Evan-dale house. Defendant was not a party to the negotiations about LSD, but after he was told that an agreement had been reached and Miller and Stevens had decided to go to Stevens’ residence to get the LSD, defendant asked Stevens if he knew where the LSD was. Stevens said no, and defendant told Stevens “just to go to the house, go into [defendant’s] bedroom to [defendant’s] dresser, top dresser drawer, right side. That’s where it would be at.”

Defendant then left the Buena Vista house to go to work, and Miller and Stevens went to the Evandale house. Once inside, Miller sat in the front room while Stevens went to a bedroom. Miller testified that he could see a dresser drawer being pulled open, and shortly thereafter Stevens returned to the front room. Miller said he could only partly see the dresser Stevens opened, but Miller could tell it was the top drawer being opened. Stevens then sold Miller a plastic bag containing two separate sheets of perforated paper bearing designs of little airplanes. Miller testified that LSD is usually sold on a perforated piece of paper and that each individual square thereof was known as a “hit” or a “tab.” He described the squares as quite small, usually about an eighth to a quarter of an inch square. He stated that the prices for these individual squares range from $.85 to $1.10, but they sometimes reach as much as $4 or $5. He also explained that an LSD user would tear the paper at the perforations and place the tab on his or her tongue. Stevens sold Miller 150 separate “hits” of LSD for $300. Miller took the sheets of paper back to the DEA offices, packaged them as evidence, and sent them to a laboratory for testing. The parties stipulated that those test results showed that the papers contained LSD.

Miller also testified that he was wearing a wireless transmitter on the waistband of his pants during all of the transactions on June 13 about which he testified. He had Federal authorization to do so. The transmitter was designed to look like a pager and did not itself record anything. However, for technical reasons that Miller could not explain, the recording that other law enforcement officers made from the transmissions from Miller’s “pager” was mostly inaudible. At trial, Miller had difficulty identifying even his own voice on the tape.

Miller also testified that the substance he bought from defendant that Miller believed to be methenamine was tested and found to be a noncontrolled substance, or “turkey” as Miller described it during his testimony.

Niteuski testified for defendant and explained that as of June 1990, she had been living with him for approximately four years. She testified that she and defendant occupied the back bedroom of the Evandale residence and that the bedroom closest to the living room was not occupied by anyone. Niteuski testified that when Miller asked defendant at the Buena Vista residence about LSD, defendant responded that he did not know anything about it and Miller would have to talk to Stevens. Niteuski denied that defendant ever told Stevens where to find LSD at the Evandale residence. She also testified that she went with Miller and Stevens to the Evandale residence when Miller went there to buy LSD, and that Stevens went down the hallway to his bedroom while she and Miller sat on the couch in the front room. Niteuski testified that from where Miller sat on the couch, he could not see down the hallway into the bedroom to see someone open the dresser drawer.

Defendant testified on his own behalf and corroborated Niteuski’s testimony about the layout of the Evandale residence and what can be seen from the front room. Defendant admitted that he had sold a substance to Miller that looked like methenamine but in fact was not. He claimed that he never supplied any information to Stevens about where Stevens could find the LSD at the Evandale residence, nor had he supplied Stevens with LSD or received any of the proceeds from Stevens’ sale of the LSD to Miller. Defendant also denied being part of any conversation pertaining to LSD.

After hearing this evidence, the jury convicted defendant.

II. Defendant’s Argument That The Statute Under Which He Was Convicted Is Unconstitutional

The State charged defendant with violating section 401(a)(7)(ii) of the Act, in that defendant knowingly delivered to Miller “10 or more segregated parts of an object or objects containing in them or having upon them any amount of any substance containing [LSD].” (See Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)(7)(h).) Citing People v. Dednarn (1973), 55 Ill. 2d 565, 567-68, 304 N.E.2d 627, 629, defendant argues that the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) requires a criminal statute to specifically warn of what constitutes the prescribed conduct, and that section 401(a)(7)(h) of the Act does not provide that specificity because it fails to define “segregated parts of an object.” We disagree.

Defendant made this same challenge at trial. In response, the State presented the testimony of Detective Jeff Busch of the Macon County sheriff’s department, who also was assigned to the DEA task force working in central Illinois. Busch testified that in his undercover work, he has purchased LSD on eight separate occasions and is familiar with its appearance and how it is commonly packaged. Busch testified that LSD is commonly sold as “blotter acid,” meaning it is sold as the contents of one three- by three-inch piece of paper into which perforations have been punched. He explained that the entire paper is first “washed” in LSD, and then it is perforated and. segregated into 100 “hits,” also known as dosage units. Each unit is approximately one centimeter square and is torn from the rest of the paper by using the perforations. Busch described the perforations on the paper as similar to those found in an ordinary checkbook, making it easier to tear a check out.

After hearing this testimony and the arguments of counsel, the trial court denied defendant’s motion to declare section 401(a)(7)(ii) unconstitutional, finding there was nothing vague about the terms used. The court further noted that it was unaware of any better terminology than that used by the legislature to describe the particular offense in question.

In People v. McCreadie (1991), 223 Ill. App. 3d 316, 318, 584 N.E.2d 839, 840, this court recently addressed another defendant’s claim that a criminal statute was unconstitutionally vague under the fourteenth amendment to the United States Constitution and wrote the following:

“In Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294, the Supreme Court emphasized the important considerations in determining whether legislation proscribing conduct is void for being vague and indefinite as being whether (1) it gives reasonable guidance to the average person; (2) it is designed in such a way as to avoid arbitrary and discriminatory enforcement; and (3) whether sensitive first amendment rights are involved, thus requiring a higher standard of review. In the instant case, it is clear that no first amendment rights are involved. We need only consider whether the statute gives reasonable guidance to the average person and avoids arbitrary and discriminatory enforcement.”

In People v. Server (1986), 148 Ill. App. 3d 888, 901, 499 N.E.2d 1019,1028, this court also wrote the following:

“It is well established that a statute, once enacted, is presumed constitutional and valid. (See People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.) Where possible, any doubts or uncertainties regarding the validity of the statute will be resolved in favor of the statute. [Citation.] A party challenging the validity of the statute has the burden of establishing a substantial constitutional violation. A statute will be held void for vagueness where the statute fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute or is so indefinite that it encourages arbitrary and erratic arrests and convictions. Colautti v. Franklin (1979), 439 U.S. 379, 58 L. Ed. 2d 596, 99 S. Ct. 675.”

See also United States v. Jackson (7th Cir. 1991), 935 F.2d 832, 838; 1 W. LaFave & A. Scott, Substantive Criminal Law §2.3, at 126-29 (1986).

In People v. Lowe (1990), 202 Ill. App. 3d 648, 653, 560 N.E.2d 438, 441, this court further explained the void-for-vagueness doctrine as follows:

“Criminal statutes are inherently limited to words as their medium. For this reason, the impossible burden of mathematical certainty is neither expected nor imposed by either the Federal or State Constitution. [Citations.] When deciding a vagueness question, a court will assign the words of the statute their ordinary or popularly understood meaning, unless there exists legislative intent to the contrary.”

Based upon the above authority, we are not persuaded by defendant’s argument that “without a definition as to what a ‘segregated part of an object’ means, the language of the statute is not sufficient to apprise anyone of what constitutes a Class X felony with regards [sic] to manufacture or delivery of LSD.” Instead, we agree with the State that the statute involved is drafted in consideration of the means by which LSD is currently packaged and sold. The State argues as follows:

“A sheet or blotter soaked with LSD obviously qualifies as an ‘object... containing LSD.’ The ‘object’ obviously comes in ‘segregated parts,’ as evidenced by the testimony of perforated units on the sheet. They are set up that way for easy detachment or separation.
‘Segregate’ is defined as ‘to separate or isolate from others or from a main body or group’ in the American Heritage Dictionary of the English Language (1969). ‘Segregation’ is defined as ‘the act or process of separation’ in Black’s Law Dictionary (5th ed. 1979).”

We agree with the State’s argument and hold that section 401(a)(7)(ii) is not unconstitutionally vague.

III. Sufficiency Of The Evidence

Defendant argues that the State’s evidence was not sufficient to show that he either conspired with Stevens to deliver LSD or that he was accountable for the conduct of Stevens in delivering LSD to Miller. Defendant correctly points out that in order to prove him guilty of delivery of LSD on an accountability theory, the State had to prove beyond a reasonable doubt that before or during the LSD delivery, he solicited, aided, abided, agreed, or attempted to aid Stevens in the planning or commission of the delivery, and that defendant did so with the intent to promote or facilitate the LSD delivery. (See 111. Rev. Stat. 1989, ch. 38, par. 5 — 2(c).) Defendant also correctly points out that (1) the only evidence against him was Miller’s testimony, and (2) due to the poor quality of the tape recordings the police made of the conversations at the Buena Vista residence, those recordings failed to corroborate Miller’s testimony regarding defendant’s involvement in the LSD sale. Although all of these arguments are correct, we disagree with defendant’s conclusion that the jury — which saw and heard Miller, as well as defendant and his long-time girlfriend, Niteuski — could not choose to believe Miller’s testimony; further, we are satisfied that if the jury chose to believe Miller, his testimony was sufficient to prove defendant guilty as charged beyond a reasonable doubt.

In People v. Frieberg (1992), 147 Ill. 2d 326, 359-60, the Illinois Supreme Court recently wrote the following when addressing another defendant’s argument that the evidence was insufficient to support a finding of guilt:

“It is the jury’s function to determine the accused’s guilt or innocence, and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191[, 549 N.E.2d 268, 276].) ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261[, 478 N.E.2d 267, 277].) In addition, it is for the jury to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in their testimony. (People v. Phillips (1989), 127 Ill. 2d 499, 514[, 538 N.E.2d 500, 505].)”

See also People v. Clark (1991), 221 Ill. App. 3d 303, 308, 581 N.E.2d 722, 726 (evidence sufficient to prove beyond reasonable doubt defendant’s guilt as accomplice).

Based on the record in this case, we conclude as did the supreme court in Frieberg: “With these principles in mind, we do not believe that a reversal of defendant’s convictions is warranted.” Frieberg, 147 Ill. 2d at 360.

IV. Sentencing Issues

Defendant argues, and the State concedes, that he is entitled to have his street-value fine of $300 reduced by credit of $5 per day for the 67 days he spent in custody prior to his sentencing. (See Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14; see also People v. Cameron (1989), 189 Ill. App. 3d 998, 1011, 546 N.E.2d 259, 267.) Accordingly, he is entitled to $335 in credit against his fine of $300, and this cause is remanded to the circuit court with directions that the sentencing order be amended to reflect that the $300 street-value fine has been satisfied.

Defendant next argues that he is entitled to a new sentencing hearing because this court recently reversed his felony conviction for possession of cannabis in People v. Goodey (1991), 223 Ill. App. 3d 393, 584 N.E.2d 1021. Defendant argues that without this other conviction on his record, the trial court would have imposed a lesser sentence. We disagree.

Defendant was convicted of a Class X felony (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(a)), which requires a prison sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3)). At defendant’s sentencing hearing, the prosecutor argued for a 10-year sentence and specifically made reference to defendant’s prior convictions for forgery and deceptive practices, as well as his prior conviction for felony possession of cannabis that this court later reversed. Defense counsel argued that a 10-year sentence would be excessive and suggested that the court instead impose a sentence of 7V2 years in prison. The trial court then stated the following:

“In this particular case, I do agree with [defense counsel]. The Defendant does have some prior convictions and I’m not going to impose the period of 10 years. I’m going to sentence the Defendant to the Department of Corrections for a period of 7 and V2 years.”

On this record, we agree with the State’s characterization that the trial court placed no particular emphasis upon defendant’s conviction for felony possession of cannabis and generally agreed with defense counsel’s assessment of the case. We note further that the court explicitly agreed with the sentence defense counsel suggested be imposed.

In People v. Schutz (1990), 201 Ill. App. 3d 154, 162, 559 N.E.2d 289, 295, this court held that a trial court’s reliance at the sentencing hearing on an improper factor in aggravation does not always require remand for sentencing. “Where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.” (Schutz, 201 Ill. App. 3d at 162, 559 N.E.2d at 295.) As this court concluded in Schütz, we conclude in the present case that the trial court mentioned defendant’s conviction for felony possession of cannabis only in passing, and then only as one of defendant’s three significant convictions. We conclude that remandment for a new sentencing hearing is not necessary on this record.

IV. Conclusion

For the reasons stated, we affirm the judgment of defendant’s conviction and sentence, and we remand to the circuit court with directions to enter an amended sentencing order in accordance with the views stated herein.

Affirmed and remanded with directions.

McCULLOUGH and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    ROGER SINRAM, Plaintiff-Appellee, v. DANIEL T. NOLAN, Defendant-Appellant.
    Fourth District
    No. 4-91-0384
    Opinion filed April 23, 1992.

      Daniel T. Nolan, of Decatur, appellant pro se.

    James A. Jankowicz, of Record, Finney, Jankowicz & Morthland, of Decatur,, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

On October 18, 1990, plaintiff, Roger Sinram, filed a forcible entry and detainer complaint against defendant, Daniel T. Nolan. After a bench trial in the circuit court of Macon County, judgment was entered for plaintiff and against defendant for past-due rent of $878.08, reasonable attorney fees of $300, plus costs. Defendant appeals. We affirm.

At a hearing on March 12, 1991, defendant admitted plaintiff was entitled to judgment for possession of the premises, but denied owing rent and attorney fees to plaintiff. The trial court entered judgment for possession and set the issue of past-due rent for trial. Defendant appeared pro se at the April 30, 1991, trial and orally moved for a continuance of at least two weeks, claiming he was unable to present his case because (1) a potential witness, Kurt Schroeder, was unavailable, and (2) prescribed medication for an inner-ear infection caused him to be weak and dizzy.

In considering defendant’s motion, the trial court first determined that Schroeder was in fact available since he was still in the area and had been in court the previous day. Then the trial court questioned defendant, while observing his speech pattern and demeanor. Defendant was unable to present medical testimony, affidavits in support of his motion, or evidence of the prescription medication he claimed he was taking. The court then denied defendant’s motion.

Our legal system cannot work efficiently if continuances are readily available on the day of trial. Supreme Court Rule 231(f) (134 Ill. 2d R. 231(f)) addresses that concern by specifically requiring that a sufficient excuse be shown for a continuance once the cause has been reached for trial. Section 2 — 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1007) similarly requires a showing of good cause to obtain a continuance, although the granting of a continuance under section 2 — 1007 is solely at the discretion of the court.

The trial court has broad discretion in ruling on motions for continuance, but that discretion must not be exercised arbitrarily. In the case at bar the trial court did not act arbitrarily, but inquired concerning the potential witness, the prescribed medication, and defendant’s condition. The trial court determined that the symptoms defendant complained of were not supported by his physical demeanor at trial.

A litigant has no absolute right to have a case continued. A decisive factor is whether the party asking for the continuance has shown diligence in proceeding with the cause. (McMillen v. Carlin-ville Area Hospital (1983), 114 Ill. App. 3d 732, 739, 450 N.E.2d 5, 11.) If a continuance is not requested until the date of the trial, the moving party must give especially persuasive reasons for continuance because of the potential inconvenience to the witnesses, the parties, and the court. A reviewing court will not interfere with the exercise of the trial court’s discretion unless there has been a manifest abuse of discretion or a palpable injustice apparent on the record. (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 510, 505 N.E.2d 1213, 1221.) The trial court here did not abuse its discretion in denying defendant’s motion for continuance.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    GARY L. McCOY et al., Plaintiffs-Appellants, v. ROLAND D. McCOY, Defendant-Appellee.
    Fourth District
    No. 4—91—0702
    Opinion filed April 23, 1992.
    G. Edward Moorman, of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellants.

      Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, RC., of Jacksonville (Barbara Fritsche, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Gary L. McCoy brought a personal injury action against his uncle, defendant Roland D. McCoy, for injuries he sustained while on a hayride. Plaintiff Carol J. McCoy brought an action for loss of consortium due to the injuries her husband sustained on this hayride. Defendant filed a motion for summary judgment, which was granted by the trial court on August 23, 1991. Plaintiffs appeal, contending the evidence of defendant’s illegal operation of the tractor from which Gary fell was sufficient to make the granting of summary judgment in favor of defendant improper. We disagree and affirm.

The trial court found “that Plaintiffs concede that the only allegation of negligence provable by the Plaintiffs is Defendant’s violation of section 11 — 1418 of the Illinois Motor Vehicle Code” (see Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 1418); that section provides as follows:

“Farm tractor operation regulated. No person shall operate a farm tractor on a highway unless such tractor is being used as an implement of husbandry in connection with farming operations.
For the purpose of this Section, use of a farm tractor as an implement of husbandry in connection with farming operations shall be deemed to include use of such tractor in connection with the transportation of agricultural products and of farm machinery, equipment and supplies as well as transportation of such tractors in connection with the obtaining of repairs thereto, and the towing of a registered truck not more than 8,000 pounds for use as return transportation after the tractor is left at the place of work or repair.” Ill. Rev. Stat. 1987, ch. 95V2, par. 11-1418.

On October 31, 1987, defendant’s daughter had a Halloween party. Following this party, there was a hayride on which Gary was a passenger. Gary had not been invited to this party but since he was defendant’s nephew, he went to the party anyway. Carol was not at the party or on the hayride. Defendant drove a tractor which pulled the wagon and all of its passengers on various country roads outside the city limits of Jerseyville, in Jersey County, Illinois.

Gary was seen drinking beer at the party, and Carol stated in her deposition that she had dropped him off at a tavern that afternoon prior to the party. At first, Gary was seated on the rear fender of the tractor next to defendant; however, he stood up and attempted to walk from the tractor back into the wagon. As he was doing so, he lost his balance and fell off the wagon, striking his head on the pavement. Gary suffered severe brain damage as a result of this fall. He has no memory of the accident or of the events of the day of the accident.

In an affidavit, defendant averred the tractor he drove that night had headlights and a bright white light on the rear fender which illuminated the area between the tractor and the wagon. He further stated the tractor had a small red light on the fender and the wagon itself had rear taillights. Defendant stated all of these lights were on and operating at the time of the accident.

In her discovery deposition, Sheila Pea stated she was at this Halloween party and hayride on October 31, 1987. She saw Gary drinking beer at the party but did not know how much he drank that evening. She did, however, see him stumble a couple of times and heard him slurring his words. She stated that prior to his fall, Gary was standing up on the tractor leaning against the rear fender. She did not see him fall but heard someone offer his hand to Gary and immediately after that she heard a thud. Sheila stated the tractor was not going very fast, there were no potholes in the road and nothing in defendant’s driving caused Gary to fall.

Margaret McCoy stated in her deposition that she also was present at this party and hayride. She stated there were lights on the tractor and wagon, and they were on when the accident occurred. She did not actually see Gary fall but knew the wagon did not hit a bump before he fell. She did feel the wagon hit a bump after he fell. However, she did not believe defendant’s driving had anything to do with Gary’s fall. She did not see Gary drinking that evening.

The trial court, in a written order, granted summary judgment in favor of defendant, finding there was no genuine issue as to any material fact. The trial court further found Gary's own negligence was the proximate cause of his injuries and that the only allegation of negligence provable by plaintiffs was the statutory violation which had no causal relation to Gary’s injuries. Accordingly, defendant was entitled to judgment as a matter of law. Plaintiffs appeal from that order.

Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Department of Revenue v. Heartland Investments, Inc. (1985), 106 Ill. 2d 19, 31, 476 N.E.2d 413, 419.) While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) When the matter at issue may be decided as a question of law, summary judgment is a proper remedy. Johnson v. American Family Mutual Insurance Co. (1990), 193 Ill. App. 3d 794, 799, 550 N.E.2d 668, 672.

A violation of a safety statute or regulation may be prima facie evidence of negligence if two conditions are fulfilled. The law must be designed to (1) protect a class to which the plaintiff belongs, and (2) the injury must have a direct and proximate connection with the regulation. (Batteast v. Wyeth Laboratories, Inc. (1990), 137 Ill. 2d 175, 193, 560 N.E.2d 315, 323.) The plaintiff must also establish that violation was the proximate cause of the injury. (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 219-20, 384 N.E.2d 323, 326.) Whether these conditions have been satisfied is a question of law for the court. Batteast, 137 Ill. 2d at 193-94, 560 N.E.2d at 323.

As stated heretofore, plaintiff’s first-amended complaint alleged defendant violated section 11 — 1418 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 1418), which violation caused the wagon to run over a pothole, thereby causing plaintiff to fall off the wagon. It is undisputed that defendant was operating his tractor in violation of this statute.

In Schultz v. Siddens (1989), 191 Ill. App. 3d 622, 548 N.E.2d 87, the court determined the purpose of section 11 — 1418. The court there concluded:

“We believe that the objective of the legislature in enacting section 11 — 1418 was obviously to limit the presence of farm tractors on highways. We cannot imagine, nor does the defendant suggest, any plausible reason for such a restriction other than to minimize the dangers which such vehicles pose to the safe movement of traffic. Such dangers include those associated with the necessarily slow speed at which such vehicles travel. We find, therefore, that section 11 — 1418 was designed for the protection of human life or property.” Schultz, 191 Ill. App. 3d at 626-27, 548 N.E.2d at 89.

We agree that the purpose of the statute is to minimize the dangers that such slow-moving vehicles pose to the safe movement of traffic and that this section was designed for the protection of human life or property.

A statutory -violation does not obviate the need to determine whether a defendant’s conduct proximately caused the injuries of which a plaintiff complains. (Cherry v. McDonald (1988), 176 Ill. App. 3d 471, 479, 531 N.E.2d 78, 82; Feldscher v. E & B, Inc. (1983), 95 Ill. 2d 360, 370, 447 N.E.2d 1331, 1336.) Proximate cause consists of two distinct elements: actual cause and legal cause. Actual cause, or cause in fact, is determined by simply analyzing the facts. A defendant’s conduct may be deemed the actual cause of a plaintiff’s injury if, “but for” the defendant’s conduct, the injury would not have occurred. Actual cause can also be established where the defendant’s conduct is a material element and substantial factor in bringing about the plaintiff’s injuries. (Turner v. Roesner (1990), 193 Ill. App. 3d 482, 490, 549 N.E.2d 1287, 1292.) While the element of proximate cause is ordinarily a question of fact for the jury, summary judgment is proper where the facts are undisputed and there is no difference in the judgment of reasonable men as to the inferences to be drawn. Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 441, 572 N.E.2d 1043, 1044.

Although plaintiffs have established that defendant violated a safety statute, they have failed to establish defendant's conduct proximately caused Gary’s injuries. Carol was not present at the accident, and Gary has no recollection of why he fell off the wagon. However, both have stated in their depositions that they had no reason to believe defendant’s driving caused Gary to fall based on what they had been told by other people who witnessed the accident. Both Sheila Pea and Margaret McCoy stated in their depositions that the tractor did not hit any potholes prior to Gary’s fall. Both stated the road was smooth and did not have any potholes and neither believed defendant’s driving had anything to do with Gary’s fall. In fact, there is nothing to suggest that Gary fell from the wagon for any reason other than that he simply lost his balance.

Therefore, we find there was no causal relationship between defendant’s violation of section 11 — 1418 of the Code and Gary’s injuries. Accordingly, as defendant was entitled to judgment as a matter of law, the trial court properly granted him summary judgment in his favor.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


text:
    JACQUELINE A. SCHWEIGHART, Plaintiff-Appellant, v. STANDARD MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—91—0755
    Opinion filed April 23, 1992.
    John C. Taylor, of Champaign, for appellant.
    Maurice W. Kepner, of Kepner & Kepner, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In August 1988, Timothy L. Schweighart, husband of plaintiff, Jacqueline A. Schweighart, was seriously injured in a motor vehicle accident. The driver of the other car involved in the accident was uninsured. Because Timothy was acting in the course of his employment when the accident occurred, he received over $123,000 in workers’ compensation benefits. Plaintiff then brought an action for declaratory judgment against defendant, Standard Mutual Insurance Company (company), Timothy’s insurer, asking the court to declare that the benefits paid to Timothy under defendant’s uninsured motorist coverage should not reduce any amount due her for her loss of consortium arising from Timothy’s accident. The company responded that Timothy had already recovered the full per-person uninsured motorist limit under the policy, which was $100,000. The trial court ruled that plaintiff’s loss of consortium claim was a derivative claim and granted defendant’s motion for summary judgment. Plaintiff appeals.

This case presents the issue of whether a spouse’s loss of consortium claim constitutes a separately compensable injury subject to its own per-person limits of an uninsured motorist policy or a derivative injury subject to the same per-person limits as the bodily injury underlying the loss of consortium claim. We hold that it is not a separately compensable injury and affirm.

Timothy’s insurance policy with the company limited coverage for damages he is entitled to receive from an accident involving an uninsured motorist accident to $100,000. The policy also contained a clause stating that all awards received under workers’ compensation would offset the amount of recovery under the policy. Timothy received over $123,000 in workers’ compensation benefits for the injuries he sustained in the collision.

Jacqueline argues that because the purpose of uninsured motorist coverage is to put claimants in the position they would have been in if the uninsured motorist had carried insurance, the company should have paid her claim. Accordingly, she argues that she should receive compensation for her loss of consortium claim just as if the uninsured motorist had held insurance. The company argues that not only did her husband’s workers’ compensation award offset the entire coverage due him under the policy, it also offset coverage for any injury derived from the injuries to him, such as Jacqueline’s claim for loss of consortium.

Part four of the policy, describing the coverage for injuries caused by uninsured motorists, states, in pertinent part, the following:

“[The Company will] pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.”

Another section of part four describes the limits of liability for the uninsured motorist coverage as follows:

“The limit of liability for uninsured motorist coverage stated in the declaration as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care and loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.” (Emphasis added.)

A one-page addendum to the policy then sets the policy limits for uninsured motorist protection at $100,000 for each person and $300,000 for each occurrence.

The workers’ compensation award that Timothy received exceeded the $100,000 policy limit for “each person” injured in a collision caused by an uninsured motorist, thus offsetting all the coverage for Timothy’s injuries and exhausting the per-person policy limit for Timothy’s injuries. The question plaintiff raises is whether her loss of consortium constitutes a separately compensable injury recoverable despite the per-person limits of Timothy’s insurance policy with the company.

The Illinois Supreme Court recently reemphasized that a loss of consortium claim is a derivative cause of action predicated on the claim of the directly injured spouse. (Blagg v. Illinois F.W.D. Truck & Equipment Co. (1991), 143 Ill. 2d 188, 199, 572 N.E.2d 920, 926.) Since the early 1900s, Illinois courts have held that when an insurance company pays the entire “per person” limit for one spouse’s direct injury, it bears no further liability for the other spouse’s loss of consortium that derives from the direct injury. See Ravenswood Hospital v. Maryland Casualty Co. (1917), 280 Ill. 103, 109, 117 N.E. 485, 488 (“[The per-person limit] specifically limits [the insurance company’s] liability to $5000 for injury or death to one person, irrespective of the number of persons who may make claim to damages on account of the injury to such person”); Cross v. Country Cos. (1989), 188 Ill. App. 3d 847, 850, 544 N.E.2d 1246, 1248 (“We find that the policy language of the instant case is similar to that in Ravenswood Hospital and conclude that the clear intent of the policy was to limit loss of consortium claims to the personally injured ‘per person’ maximum”).

Professors Keeton and Widiss have also determined that loss of consortium does not constitute a separately compensable injury under most insurance policies:

“Most decisions in point have held that consortium damages and other consequential damages sustained by persons other than the individual who was physically injured are treated as part of the total that is subject to the limit of liability that applies when one person suffers a physical injury. This means, for example, that the combined amount paid by an insurer as a consequence of the separate claims of a wife and husband because of physical injury to one of them will not exceed the per-person limit of liability specified in the insurance policy.” R. Keeton & A. Widiss, Insurance Law §5.9(b)(2), at 586 (Practitioner’s ed. 1988).

The rule that loss of consortium claims ordinarily fall within the policy limits for the injury from which the loss of consortium claim derives hinges on the derivative nature of the loss of consortium claim. Because “per person” limits in insurance policies generally apply to all the injuries that result from a bodily injury to one person, and the loss of consortium claim results from the direct injuries to that same person (the plaintiff’s spouse), the “per person” limits apply to both the claim by the physically injured spouse and the claim by the indirectly injured spouse who alleges loss of consortium. See Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 224, 514 N.E.2d 214, 216 (“Loss of consortium is a personal rather than a bodily injury and is generally included and subject to the policy limitations for bodily injury to one person”); Gass v. Carducci (1964), 52 Ill. App. 2d 394, 402, 202 N.E.2d 73, 77 (“The term ‘one person’ contained [in insurance policy limits] has repeatedly been construed by the courts to mean ‘one person injured’ and that it applies to all damages sustained by all persons as the result of injury to one person; [courts] have rejected the contention that the ‘one person’ limit merely deals with the loss suffered by any one person”); Oda v. Highway Insurance Co. (1963), 44 Ill. App. 2d 235, 256, 194 N.E.2d 489, 500 (holding that when the insurance company paid the per-person limit under the policy on the judgment in favor of the injured party, there was no more coverage for claims arising from his injury, including his wife’s claim for loss of consortium).

Although the specific language of a particular insurance contract may require a loss of consortium claim to be treated independently (see, e.g., Filip v. North River Insurance Co. (1990), 201 Ill. App. 3d 351, 353-54, 559 N.E.2d 17, 19 (policy broadened the term “bodily injury” to include personal injury and each bodily injury was compensable); Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 654, 513 N.E.2d 1168, 1172 (policy defined “bodily injury” to include “sickness, disease, death or loss of services which result from it”)), the language in the policy in this case is clear and consistent with the trial court’s result. See Cross, 188 Ill. App. 3d at 850, 544 N.E.2d at 1248; Creamer, 161 Ill. App. 3d at 224-25, 514 N.E.2d at 216.

We hold that loss of consortium is a derivative claim to the direct injury that causes it, and that payment of the per-person insurance limits to an injured person precludes that person’s spouse from recovering from the insurance company for loss of consortium or anyone else from recovering for any harm that the injured person’s injury causes. Our holding does not restrict parties from contracting otherwise (see Filip, 201 Ill. App. 3d at 354-55, 559 N.E.2d at 19-20; Giardino, 160 Ill. App. 3d at 655, 513 N.E.2d at 1173), and we will enforce a contract that expressly recognizes that loss of consortium constitutes a separately compensable injury subject to a separate per-person limit than the injury from which it derives.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

GREEN, P.J., and KNECHT, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY G. PRICE, Defendant-Appellant.
    Fourth District
    No. 4—91—0659
    Opinion filed April 15, 1992.

      Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant pleaded guilty to delivery of less than one gram of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(c)). The McLean County trial court concurred in the plea agreement and sentenced defendant to three years’ imprisonment and imposed a $380 street-value fine. Defendant appeals the $380 street-value fine and contends he is entitled to a $5 credit against any fine imposed. We affirm the fine imposed but remand with instructions.

Count I of the indictment charged defendant unlawfully delivered to an undercover police officer less than one gram of a substance containing cocaine, in violation of section 401(c) of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. SGVa, par. 1401(c)). Count II of the indictment charged defendant delivered to the same agent more than 1 gram but less than 15 grams of a substance containing cocaine, in violation of section 401(b)(2) of the Act (Ill. Rev. Stat. 1989, ch. 56%, par. 1401(b)(2)).

Defendant entered a plea agreement. He agreed to plead guilty to count I, and the State agreed to nol-pros count II. The maximum sentence to be imposed by the court was three years’ imprisonment and a $380 street-value fine. The defendant reserved the right to seek a lesser sentence.

At the hearing on defendant’s plea, the court admonished the defendant in accordance with Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)). The State presented the factual basis for the plea. The prosecutor represented Officer Sweeney would testify defendant sold her a clear plastic bag containing a substance purported to be cocaine for $50. Sandra Nelson, a forensic scientist, would testify the plastic bag contained .4 grams of a white, powdery substance containing cocaine. Defendant then repeated his desire to plead guilty and the court accepted the plea.

Defendant later filed a motion to withdraw his guilty plea and then also filed a supplemental motion to withdraw the plea and vacate the judgment of conviction.

Evidence adduced at the sentencing hearing indicated defendant sold .4 grams of a substance containing cocaine to the agent on April 25, 1989. This sale was the basis of count I of the indictment to which defendant pleaded guilty. On May 2, 1989, he sold her 3.4 grams of a substance containing cocaine. This sale was the basis of count II of the indictment. Defendant sought probation, but the court sentenced him to the maximum allowed under the plea agreement: three years’ imprisonment and a $380 fine, the street value of the controlled substances seized. The court also denied defendant’s supplemental motion to withdraw his plea. Defendant then appealed.

On appeal, defendant first contends the $380 street-value fine must be reduced. The State argues defendant has waived this argument because he failed to raise it in his motion to withdraw his plea and in the supplemental motion to withdraw the plea. We note he also failed to object to the amount of the fine or seek a reduction of it at the sentencing hearing. Any error not raised in a written post-trial motion is waived. (People v. Adkisson (1980), 83 Ill. 2d 1, 7, 413 N.E.2d 1238, 1240.) Defendant has waived this issue. On the merits, we also would conclude the street-value fine should not be reduced.

Defendant contends the court based the fine on the total amount of the controlled substance seized in both sales, 3.8 grams. Thus, according to defendant, the court imposed a fine based in part on the charge the State nol-prossed, this in violation of section 5 — 9—1.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1.1). He argues the fine should be reduced to $50, the amount the agent paid for the .4 grams of the substance containing cocaine. Defendant cites several cases in support of this argument: People v. Lusietto (1989), 131 Ill. 2d 51, 544 N.E.2d 785; People v. Smith (1990), 198 Ill. App. 3d 695, 556 N.E.2d 307; and People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438. The defendants in these cases also entered guilty pleas. The trial courts improperly imposed fines based on the total amounts of contraband seized rather than the quantities supporting the charges underlying the convictions.

This case is, however, distinguishable. Here, defendant entered a guilty plea which specified the maximum sentence and the amount of the fine the court could impose.

“Where a defendant enters a negotiated plea of guilty, he voluntarily accepts the sentence, even if it is in excess of the statutory minimum and thereby recognizes and admits that such sentence is fair and justified in light of his history and character and the nature of the circumstances of the offense.” People v. Brace (1985), 130 Ill. App. 3d 1054, 1066, 474 N.E.2d 1364, 1372.

We believe this case is analogous to plea agreements involving restitution. Section 5 — 5—6(d) of the Code states:

“In instances where a defendant has more than one criminal charge pending against him in a single case, or more than one case, and the defendant stands convicted of one or more charges, a plea agreement negotiated by the State’s Attorney and the defendants [sic] may require the defendant to make restitution to victims of charges which have been dismissed or which it is contemplated will be dismissed under the terms of the plea agreement, and pursuant to such agreement, the court may impose a sentence of restitution on the charge or charges of which the defendant has been convicted which would require the defendant to make restitution to victims of other offenses as provided in such a plea agreement.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6(d).)

This statute reflects a public policy which we believe permitted this defendant to negotiate a slightly higher street-value fine based on all the drugs he sold in exchange for the dismissal of the second, more serious charge pending against him. Defendant agreed to pay the $380 fine and in exchange the State agreed to nol-pros count II of the indictment, which charged him with a Class 1 felony. The street-value fine imposed should not be reduced.

Defendant makes a second, alternate argument for reduction of the street-value fine. He asserts the court improperly calculated the street value. The record includes the transcript of the grand jury proceedings where the agent testified she paid defendant $50 for .4 grams and $225 for 3.4 grams of the substances containing cocaine. She stated one-quarter ounce of cocaine (approximately seven grams) generally costs between $400 and $500. According to defendant, this testimony indicates Officer Sweeney paid an average price ($275) for the 3.8 grams. The court’s fine was apparently based on a calculation of $100 per gram. Defendant seeks to have the fine reduced to $275.

For the reasons already stated, this argument also fails on the merits. The street value of the contraband is irrelevant because defendant agreed to pay the $380 fine when he entered the plea agreement.

Defendant’s final argument involves credit against the fine imposed. He seeks a $5 credit for the one day he spent in custody awaiting sentencing. The State agrees defendant is entitled to the $5 credit and we concur. (People v. Cameron (1989), 189 Ill. App. 3d 998, 1011, 546 N.E.2d 259, 267.) We remand to the trial court for correction of the mittimus, to reflect a $5 reduction in the fine imposed.

Affirmed and remanded with instructions.

STEIGMANN and LUND, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. BLEITNER, Defendant-Appellant.
    Fourth District
    No. 4—91—0618
    Opinion filed April 15, 1992.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles H. Burch, State’s Attorney, of Hardin (Norbert J. Goetten, Robert J. Eider man, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Robert C. Bleitner appeals the Calhoun County circuit court’s dismissal of his pro se post-conviction petition filed pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, pars. 122 — 1 through 122 — 8). He argues the dismissal is void because it was entered, but not filed by the circuit clerk, within 30 days after he filed his petition. He also argues because the petition adequately established claims of ineffective assistance of trial and appellate counsel, the court improperly dismissed his petition. We reject defendant’s arguments.

On March 12, 1988, defendant was indicted in Calhoun County case No. 88 — CF—3 for the alleged criminal sexual assault of his 17-year-old stepdaughter. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(3).) Before defendant pleaded guilty in No. 88 — CF—3, he was arrested for attempting to place a pipe bomb in the car of the Calhoun County State’s Attorney who was prosecuting him for the alleged sexual assault offense. For this action, he was convicted of unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(7)), conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 2(a), 9 — 1), and attempt (first-degree murder) (Ill. Rev. Stat. 1987, ch. 38, pars. 8— 4(a), 9 — 1). Defendant was sentenced to concurrent terms of 28 years’ imprisonment for attempt, and 5 years for unlawful use of weapons. No sentence was imposed on the conspiracy offense. We affirmed this conviction. People v. Bleitner (1989), 189 Ill. App. 3d 971, 546 N.E.2d 241 (hereinafter Bleitner I).

Defendant pleaded guilty in the criminal sexual assault case, No. 88 — CF—3, against his counsel’s advice. On December 14, 1988, the trial court imposed an extended term of 22 years to run consecutively to his prior sentence for the pipe bomb incident. Defendant appealed, contending the trial court erred by accepting his guilty plea because he repeatedly proclaimed he was innocent, he had recently been sentenced to 28 years for the pipe bomb incident, and he was mentally ill. We affirmed. See People v. Bleitner (1990), 199 Ill. App. 3d 146, 148, 556 N.E.2d 819, 820 (hereinafter Bleitner II).

On June 27, 1991, defendant filed a pro se petition for post-conviction relief in No. 88 — CF—3, alleging in part that his plea was involuntary because he had been denied effective assistance of trial counsel and appellate counsel. On July 29, 1991, an order was filed by the circuit clerk dismissing the petition as frivolous and nonmeritorious. In regard to the time limitations for ruling on post-conviction relief, the judge stated that he had been busy with other cases, but had examined the petition on July 24 and 25, 1991, within the time prescribed by the statute. The order was dated as entered on July 25.

Section 122 — 2.1(a) of the Act states, “[wjithin 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a).) Defendant contends the court lacked authority to dismiss his post-conviction petition because this section should be interpreted as requiring the court to file its dismissal order within 30 days. The court’s order was not filed until July 29, 32 days after his petition was filed. Defendant asks this court to establish a “bright-line” rule that dismissal orders are not properly entered unless filed by the circuit clerk within 30 days. We decline to so hold because we conclude the trial court’s order was filed within 30 days.

As the State correctly notes, the court’s filing of its dismissal was timely pursuant to section 1.11 of the Statute on Statutes, which states in relevant part:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.” Ill. Rev. Stat. 1989, ch. 1, par. 1012.

The court’s order was filed on Monday, July 29, 1991. Defendant filed his petition June 27, 1991. Excluding this day as the first day, and adding 30 days brings us to July 27, 1991, as the deadline for the court’s order to be filed. July 27, however, was a Saturday. July 28 was a Sunday. July 27 and 28 are excluded from the computation. The court’s July 29 order was timely filed.

We next address defendant’s argument the court abused its discretion by dismissing his post-conviction petition as frivolous and without merit. The Act authorizes the court to dismiss a petition filed by an imprisoned defendant when the petition is “frivolous or is patently without merit.” (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(a)(2).) The allegations contained in his petition which he contends were not frivolous and were meritorious are as follows: (1) his trial counsel was ineffective because he did not pursue a motion to show why the testimony of the victim’s sister was necessary to the defense, (2) he was too mentally ill to capably plead guilty, and (3) his appellate counsel was ineffective because she did not cite People v. Bernasco (1989), 185 Ill. App. 3d 480, 541 N.E.2d 774, affd (1990), 138 Ill. 2d 349, 562 N.E.2d 958, cert, denied (1991), 500 U.S. 932, 114 L. Ed. 2d 458, 111 S. Ct. 2052, in her appellate brief.

Defendant argues each allegation adequately raised a constitutional violation which should have required further proceedings under the Act. Had his petition not been dismissed, the Act requires the court to “order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122 — 6.” Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(b).

Defendant relies on our previous ruling in People v. Dredge (1986), 148 Ill. App. 3d 911, 500 N.E.2d 445, in which this court concluded a pro se defendant seeking post-conviction relief from an alleged constitutional violation need only include in the petition a simple statement representing the gist of a meritorious claim. We reasoned that requiring pro se defendants to state their claim more explicitly would deprive them of effective access to the courts. Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47; see also People v. Lawrence (1991), 211 Ill. App. 3d 135,138, 569 N.E.2d 1175,1177.

The scope of review of a post-conviction petition is limited to issues which have not been, and could not have been, previously adjudicated. When the trial court’s ruling is affirmed on direct appeal, all issues which were raised or could have been raised are res judicata. People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335; People v. Seidler (1990), 203 Ill. App. 3d 666, 669, 561 N.E.2d 386, 388.

Allegations in a post-conviction petition must be supported by affidavits or by the record in the case. (People v. Gacy (1988), 125 Ill. 2d 117, 124, 530 N.E.2d 1340, 1342; People v. Gaines (1984), 105 Ill. 2d 79, 91-92, 473 N.E.2d 868, 875; see Lawrence, 211 Ill. App. 3d at 138, 569 N.E.2d at 1177.) The record does not support defendant’s claim of ineffective assistance of counsel due to counsel’s failure to pursue a motion seeking testimony by the victim’s sister. Defendant pleaded guilty against counsel’s advice. Once the guilty plea was entered, counsel’s efforts to obtain any testimony were thwarted. Defendant cannot now complain about the effects of potential testimony when he decided to plead guilty and this decision was contrary to counsel’s advice. His claim of ineffective trial counsel does not present a gist of a claim. Defendant has not provided a basis in the record from which the trial court could find his allegation was anything but frivolous.

The State also argues if the counsel erred, the error was harmless based on the overwhelming additional evidence of defendant’s guilt. We need not evaluate the quantum of evidence to find the trial court’s dismissal of this allegation was proper.

The trial court’s dismissal order also correctly indicates defendant was precluded from raising the argument that his guilty plea was involuntary due to his mental disorder because this issue was raised on direct appeal. In Bleitner II, we found the trial court correctly concluded defendant was fit to enter a plea. He understood the nature of the proceedings and was capable of assisting in his defense. (Bleitner, 199 Ill. App. 3d at 152, 556 N.E.2d at 822.) Defendant could not raise alleged mental illness as reason for post-conviction relief. The court properly dismissed this as a basis for relief.

Defendant also argues the court should not have dismissed his claim of ineffective assistance of appellate counsel. Defendant asserted in his petition that appellate counsel should have cited a fifth district case which ruled that mental deficiency is important in determining whether a confession is voluntary. (See Bernasco, 185 Ill. App. 3d 480, 541 N.E.2d 774.) Although defendant concedes the facts in Bernasco are distinct, he contends its ruling would have provided a basis for further consideration of his mental capacity to plead guilty.

The State argues appellate counsel was not ineffective by not citing Bernasco because the issues raised in it were distinct from those present in defendant’s case. It outlines the requisites for establishing an ineffectiveness of counsel claim and contends counsel’s failure to cite Bernasco would not have affected the outcome of defendant’s direct appeal. Furthermore, the State argues because the issue of whether defendant’s plea was voluntary was determined on direct appeal, it is res judicata.

The requisite mental capacity required to effectively waive Miranda warnings does not directly apply to the requisite characteristics needed to be found to have voluntarily pleaded guilty. Moreover, as previously discussed, the issue of defendant’s mental capacity was determined on direct appeal and is res judicata. (Roberts, 75 Ill. 2d at 10, 387 N.E.2d at 335; Seidler, 203 Ill. App. 3d at 669, 561 N.E.2d at 388.) The court did not err in dismissing the petition despite this allegation.

The record in this case allowed the trial court to dismiss defendant’s post-conviction petition as frivolous and without merit. The judgment of the trial court is affirmed.

Affirmed.

STEIGMANN and COOK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL RENNELS, Defendant-Appellant.
    Fifth District
    No. 5—91—0368
    Opinion filed April 28, 1992.
    Ronald Tulin, of Ronald Tulin, Ltd., of Charleston, for appellant.
    Michael Kiley, State’s Attorney, of Shelbyville (Norbert J. Goetten, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Paul Rennels, was charged in the circuit court of Shelby County with forgery. Rennels was the manager and secretary of the Sigel Elevator Company, Inc. In December of 1988, he issued a receipt to James Wesselman for $2,000, purportedly as down payment on a building. Sigel Elevator had made an oral agreement to purchase the building in question in May of 1984 from Teutopolis State Bank, but no deed was issued until 1990 because of a tax lien. Wesselman began occupying the building in 1984. An information charging Rennels with forgery was filed on March 6, 1990. The information contained no theft charges. At trial, Wesselman testified that Rennels gave him the receipt in question in December of 1988, but he admitted that Rennels did not indicate why. Wesselman assumed that it was for work performed on the Rennels farm. Rennels maintained that it was issued as payment for work done for the elevator in 1985 and 1986.

The trial court allowed motions in limine excluding evidence that Rennels and Sigel Elevator had reached a civil settlement prior to the filing of the charges and prohibiting defendant from arguing to the jury his belief that, if anything, the offense involved was theft, not forgery.

Rennels was found guilty after a jury trial, and the trial court entered judgment ordering him to make restitution of $2,000 and perform 1,600 hours of community service.

On appeal, Rennels argues that the information was insufficient to charge him with forgery. The definition and elements of the offense of forgery are set forth in section 17 — 3 of the Criminal Code of 1961:

“(a) A person commits forgery when, -with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or
(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.
(b) An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.
(c) A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated.” Ill. Rev. Stat. 1989, ch. 38, par. 17 — 3.

In People v. Hockaday (1982), 93 Ill. 2d 279, 443 N.E.2d 566, our supreme court held:

“ ‘An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.’ ” (Hockaday, 93 Ill. 2d at 283, 443 N.E.2d at 568, quoting People v. Patrick (1967), 38 Ill. 2d 255, 258, 230 N.E.2d 843, 845.)

After carefully reviewing the information in the present case, we find that it does not meet this test.

The information in the present case alleged:
“PAUL RENNELS committed the offense of FORGERY in that the said defendant, with the intent to defraud, knowingly made a document apparently capable of defrauding another, the Sigel Elevator Company, Inc., to wit: a receipt for a down payment purportedly made to the Sigel Elevator Company, Inc., by James Wesselman in the amount of $2,000.00 signed by Paul Rennels, as Secretary of the Sigel Elevator Company, Inc., without the authority of the Sigel Elevator Company, Inc., in violation of chapter 38, section 17 — 3(a)(1).”
It is well settled that in a charge of forgery:
“[T]he instrument which is the subject of the charge must show on its face an apparent capacity to defraud another, or, if it does not, the indictment must include averments of extrinsic facts which establish that capacity. [Citation.] The test for determining whether a document is apparently capable of defrauding another is whether a reasonable and ordinary person might be deceived into accepting the document as true and genuine [citation], and whether it creates, transfers, alters or terminates any right, obligation or power with reference to any person or property [citation].” People v. Panagiotis (1987), 162 Ill. App. 3d 866, 871-72, 516 N.E.2d 280, 284.

It is no longer necessary in a forgery prosecution to attach to the charging instrument a copy of the document in question or set it out in haec verba, but it is permissible to give a description of the document. People v. Toolen (1983), 116 Ill. App. 3d 632, 451 N.E.2d 1364, citing People ex rel. Miller v. Pate (1969), 42 Ill. 2d 283, 246 N.E.2d 225.

In People v. Moyer (1971), 1 Ill. App. 3d 245, 273 N.E.2d 210, one of the documents which was the subject of the forgery charge was a sales receipt of a clothing store, to which the defendant signed a fictitious name. The court in Moyer found that the receipts themselves showed no tendency to defraud, but the court found the indictment sufficient because, in addition to a description of the document, it averred that the defendant signed the fictitious name for the purpose of fraudulently obtaining goods and that he in fact did obtain items of clothing from the store, thereby demonstrating the sales receipt’s capacity to defraud. In the present case we have a “receipt,” allegedly signed by Rennels without authority to do so, but there are no allegations of extrinsic facts demonstrating the receipt’s capacity to defraud.

In People v. Dismore (1975), 33 Ill. App. 3d 495, 342 N.E.2d 151, the documents that were the subject of the forgery charges were a hotel guest registration card, numerous restaurant checks charging meals to a room, and a balance sheet for the room. Analogizing these documents to the sales receipts in Moyer, the court held that at best they were mere evidence of debt and did not themselves create, transfer, alter or terminate any right, obligation or power -with respect to any person or property.

In People v. Reynolds (1980), 85 Ill. App. 3d 549, 407 N.E.2d 64, the defendant used a stolen credit card to purchase a ring. He was charged with forgery based upon his fraudulent use of the card owner’s signature on the credit card sales receipt. The Reynolds court found that the credit card sales receipt possessed the requisite capacity to defraud in that it bore the name and account number of the authorized cardholder and disclosed the agreement between the parties obligating the credit card company to reimburse the jeweler and obligating the cardholder to reimburse the credit card company. The court in Reynolds distinguished Dismore, stating that the credit card sales receipt was not merely evidence of indebtedness but purported to obligate the credit card company to the merchant. The present case is likewise distinguishable from Reynolds in that the receipt does not purport to obligate Sigel to Wesselman or anyone else.

In Toolen, the documents which were the subject of the forgery charges included requisitions setting forth bids for vehicle parts. The Toolen court found the indictment sufficient, reasoning that the term “requisition” was commonly understood to be a written request for supplies, and a “bid” was commonly understood to be an offer to purchase parts at a specified price. A request including bids for which no authority was given, the court stated, could result in action being taken on that form which might not have been taken in the absence of the unauthorized bids.

Finally, in Panagiotis, the defendant, a district sales manager for an airline, was charged with forgery based upon his unauthorized issuance of free, promotional airline tickets in exchange for various personal items. The court found the indictment sufficient to charge forgery because the airline tickets obligated the airline to provide free air transportation, at least until the fraud was discovered. It was upon this basis that the court distinguished Dismore, noting that the situation was more analogous to Reynolds and Toolen.

The information in the present case alleges that Rennels, without authority, issued a receipt to Wesselman for a $2,000 down payment Wesselman purportedly made to Sigel. A copy of the receipt is not attached to the information, and the reasons for and the circumstances surrounding the issuance of the receipt are unclear from the description of the document and the lack of averments of extrinsic facts. The term “down payment” provides little clarification. There is no indication for what purpose the down payment was allegedly made. A “receipt” is a mere acknowledgement, in this case that Sigel received $2,000 from Wesselman, and does not itself create any obligation. The information does not aver that anything was given to Wesselman in exchange for the money, nor does it indicate that the money was payment on any kind of debt Wesselman owed to Sigel. It is not even clear whether Wesselman gave $2,000 to Rennels, who kept it for himself, or whether no money was exchanged at all. While the term “down payment” implies the purchase of something and that further payments would be forthcoming, there are no extrinsic facts pleaded which would establish this. In short, nothing in the description of the document indicates how it could create, transfer, alter, or terminate any right, obligation, or power with reference to any person or property, and there are no extrinsic facts pleaded which demonstrate the receipt’s capacity to defraud.

We also note that the present case is also closely analogous to People v. Lindquist (1981), 97 Ill. App. 3d 894, 424 N.E.2d 66. The defendant in Lindquist was the executor of an estate who improperly drew a check on estate funds for his own purposes. After expressing its curiosity that defendant was not charged with theft, the court ruled that defendant had authority to issue checks, and the court reversed his forgery conviction. The court rejected the State’s argument that defendant did not possess the authority to issue checks for his own purposes. The record in the present case demonstrates that the defendant had authority to issue documents relating to the day-to-day operation of the elevator, and he argues that if anything, this is a case of theft, not forgery. As in Lindquist, the State argues that Rennels did not have the authority to pay his personal debts with company funds. Having previously determined that the information failed to allege the receipt’s apparent capacity to defraud, we need not address this argument. Defendant raises numerous other arguments on appeal, but again, our previous finding makes it unnecessary to address them.

For the foregoing reasons, the judgment of the circuit court of Shelby County is reversed.

Reversed.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE STOUDER

text:
    MARVIN BILDERBACK, Plaintiff-Appellant and Cross-Appellee, v. ADMIRAL COMPANY, Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3-91-0525
    Opinion filed March 26, 1992.
    Rehearing denied May 22, 1992.

      Jerry Serritella, of Peoria, for appellant.
    Carl H. Trieshmann, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Joseph S. Turner, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court;

The plaintiff, Marvin Bilderback, appeals from a judgment entered in favor of the defendant, the Admiral Company. The defendant cross-appeals.

The plaintiff filed a two-count amended complaint against the defendant in February of 1990. In count I, the plaintiff asserted that his employment with the defendant had been terminated in retaliation for his pursuit of benefits under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Count II alleged he was discharged for filing a complaint under the Occupational Safety and Health Act of 1970 (29 U.S.C.S. §651 et seq. (1990)).

Following a three-day trial, the jury returned a general verdict finding in favor of the plaintiff on count I and in favor of the defendant on count II. The jury awarded the plaintiff total damages of $66,000. The jury also returned answers to a set of special interrogatories. The defendant moved for judgment notwithstanding the verdict. The trial court reserved ruling on the motion and requested a written motion. Subsequently, the plaintiff filed a post-trial motion requesting judgment be entered on the verdict. The defendant filed a post-trial motion requesting judgment in its favor. In the alternative, the defendant moved for judgment notwithstanding the verdict, a new trial and a directed verdict. The defendant argued the answers to the special interrogatories were inconsistent with the general verdict returned on count I. The trial court agreed and entered judgment in favor of the defendant on both counts I and II. The trial court ruled conditionally against the defendant on the defendant’s alternative motions. The ruling on count II is not in issue in this appeal.

On appeal, the plaintiff argues, inter alia, that the general verdict and the special interrogatories are consistent. We find, given the phraseology of the interrogatories, that no inconsistency exists.

When the answers to special interrogatories are inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1108.) An inconsistency between the special interrogatories and the general verdict exists only when the answers to the special interrogatories are clearly and absolutely irreconcilable with the general verdict. (Zois v. Piniarski (1982), 107 Ill. App. 3d 651, 437 N.E.2d 1251.) In determining whether the answers to special interrogatories are inconsistent with the general verdict, all reasonable presumptions must be exercised in favor of the general verdict. (State Farm Fire & Casualty Co. v. Miller Electric Co. (1990), 204 Ill. App. 3d 52, 562 N.E.2d 589.) Traditionally, where special interrogatories which are allegedly inconsistent with the general verdict do not cover all the issues submitted to the jury, the general verdict has been harmonized with the special findings, without looking to the evidence, by concluding that the general verdict represents a response to the issues not determined by the special findings. McCutchen v. Bigler (1981), 101 Ill. App. 3d 696, 428 N.E.2d 669.

In the instant case, the jury was given the following issue instruction: “When I say that the plaintiff must prove that he was discharged in retaliation for filing workers’ compensation claims, I mean that plaintiff must prove that the motive, or actual reason, for his discharge was his filing of workers’ compensation claims.” In returning a verdict for the plaintiff on count I, the jury found the plaintiff had proven this fact.

Among others, the following interrogatories were submitted to the jury. The jury answered each in the affirmative.

“Did Ron Hanson recommend Plaintiff’s discharge because he believed that Plaintiff had shoved supervisor Mike Kavanaugh?”
“Did Ron Hanson recommend Plaintiff’s discharge because he believed Plaintiff had given false information to Company nurse, Marcia Fox?”
“Did Jon O. Nicholas authorize Plaintiff’s discharge because he believed Plaintiff had shoved supervisor Mike Kavanaugh?”
“Did Jon O. Nicholas authorize Plaintiff’s discharge because he believed Plaintiff had given false information to the Company nurse, Marcia Fox?”

The defendant argues the jury’s affirmative answers to these interrogatories show that the plaintiff was discharged for nonpretextual and valid reasons, and that the general verdict on count I in favor of the plaintiff is inconsistent with the jury’s findings on the interrogatories.

As an initial matter, we note the parties’ argument concerning the “mixed motives” instruction. We find the jury was properly instructed on causation and therefore no issue of mixed motives arises.

In the instant case, the jury found the plaintiff’s pursuit of workers’ compensation benefits was the actual reason for his discharge. The special interrogatories do not establish that anything else was the actual reason. The interrogatories at most concerned interlocutory facts and not controlling facts. There were no special interrogatories asking whether the defendant or members of its staff discharged the plaintiff because he was pursuing workers’ compensation benefits. We find the jury could have answered the interrogatories cited above in the affirmative, and also have found the defendant was discharged because of his workers’ compensation claims.

The interrogatories are in our view rather ambiguous. They speak of “authorizing” and “recommending” discharge. It would have been quite simple and much clearer to have asked, for example, “Was the plaintiff discharged because he was pursuing workers’ compensation claims?” The defendant proffered the interrogatories and is responsible for the ambiguity resulting. In sum, the general verdict addresses an issue which was not determined by the special findings of the jury, and therefore there is no inconsistency. The trial court erred in denying the plaintiff’s motion for judgment on the verdict.

Having found the trial court erred in granting the defendant’s motion for judgment on count I, and in denying the plaintiff’s motion for judgment on the verdict, we must address the merits of the defendant’s cross-appeal. On cross-appeal, the defendant argues the trial court erred in conditionally denying its alternative motions for a new trial, judgment notwithstanding the verdict and a directed verdict.

In the instant case, the plaintiff testified to numerous threats of dismissal made by various supervisory personnel of the defendant. In addition, two co-workers of the plaintiff testified to derogatory and threatening statements concerning the plaintiff made by executives between 1984 and 1989. Also there was conflicting testimony regarding the series of events surrounding the investigation of the incident precipitating the plaintiff’s dismissal and the decision to discharge the plaintiff.

The defendant argues that the threatening statements are irrelevant since they were not made by those who made the decision to discharge the plaintiff. (See Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.) The defendant argues the evidence shows the plaintiff was dismissed for nonpretextual reasons, i.e., shoving a supervisor and lying to the company nurse.

On review of the entire record, we find the evidence presented was conflicting. However, there was sufficient evidence to support the jury’s conclusion. Therefore, the trial court did not err in denying the defendant’s contingent motions for a directed verdict and judgment notwithstanding the verdict. We also note that no trial errors have been called to our attention which prejudiced the defendant; therefore, the contingent ruling denying a new trial was also appropriate.

For the foregoing reasons, the judgment of the circuit court of Knox County denying the plaintiff’s motion for judgment on count I of the jury’s verdict is reversed, and the cause is remanded for entry of judgment in favor of the plaintiff on count I. In all other respects, the judgment of the circuit court is affirmed.

Affirmed in part, reversed in part and remanded.

HAASE and GORMAN, JJ., concur.