text:
    D.E. WRIGHT ELECTRIC, INC., Plaintiff-Appellant, v. HENRY ROSS CONSTRUCTION COMPANY, INC., Defendant-Appellee.
    Fifth District
    No. 5—87—0835
    Opinion filed April 28, 1989.

      Robert J. Hillebrand, of Hillebrand & Stubblefield, P.C., of Belleville, for appellant.
    M. Joseph Hill, of Mateyka & Hill, P.C., of Edwardsville, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, D.E. Wright Electric, Inc., appeals from the dismissal with prejudice of its complaint against defendant, Henry Ross Construction Company, Inc., by the circuit court of Jackson County on November 20, 1987. For the reasons which follow, we reverse the order of the circuit court and remand this cause with directions.

Plaintiff filed its complaint in the circuit court of St. Clair County on May 24, 1976. The action was brought under section 28 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1975, ch. 82, par. 28), against the owner of the improved property, First National Bank and Trust Company, as trustee, and the defendant/contractor, Henry Ross Construction Company, Inc.

Section 28 of the Mechanics’ Liens Act provides that a subcontractor may sue the owner and contractor jointly for the amount due under the subcontract, and a personal judgment may be rendered against both. Such an action may be maintained against the owner only when the plaintiff establishes a right to the lien. All suits and actions by subcontractors under this section must be brought against both the contractor and the owner jointly, and all judgments where the lien is established shall be entered against both jointly. However, “this shall not preclude a judgment against the contractor, personally, where the lien is defeated.” Ill. Rev. Stat. 1987, ch. 82, par. 28.

Plaintiff’s complaint alleges that plaintiff entered into a subcontract with defendant, Henry Ross Construction Company, Inc., to perform certain electrical work and supply materials for the construction of a building located on land owned by First National Bank and Trust Company, as trustee; that plaintiff has performed under the contract; that there remains due and owing to plaintiff under the contract the sum of $56,516.68; and that plaintiff has served upon both the contractor and the owner a notice of lien as provided by the Mechanics’ Liens Act. The complaint prays that the court enforce plaintiff’s rights under the Mechanics’ Liens Act and enter judgment jointly against both the contractor and owner.

On July 28, 1976, defendant, Henry Ross Construction Company, Inc., filed a motion to dismiss plaintiff’s complaint for the reason that the subcontract between plaintiff and defendant provides that

“[a]ll claims, disputes, and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, shall be decided by arbitration ***.”

On August 22, 1978, the court ordered all further proceedings stayed until such time as arbitration is concluded. On December 1, 1978, plaintiff moved the court to set aside the stay order for the reason that the subcontract between plaintiff and defendant also provides that the arbitration clause

“shall not be deemed a limitation on any rights or remedies which the Subcontractor may have under any Federal or State mechanics' lien laws”

and that plaintiff’s action was brought pursuant to the Mechanics’ Liens Act of the State of Illinois. On January 3, 1979, the court vacated its order of August 22, 1978, staying proceedings in this cause. The case was reset on the court’s regular docket.

On March 27, 1979, plaintiff’s complaint was dismissed for technical reasons, and plaintiff was granted leave to amend. Plaintiff filed its amended complaint on May 14, 1980. The complaint contained substantially the same allegations of fact as plaintiff’s original complaint and prayed that the court enter judgment against the contractor and owner in the sum of $56,516.68 plus interest, and that the court enforce plaintiff’s rights under the Mechanics’ Liens Act.

On June 23, 1980, owner filed a motion to transfer venue from St. Clair County to Jackson County for the reason that section 9 of the Mechanics’ Liens Act provides that venue is proper thereunder in the county where the property is located, and the property involved herein is located in Jackson County. (Ill. Rev. Stat. 1987, ch. 82, par. 9.) This motion was granted by order of court dated August 11, 1980, and the cause was ordered transferred to Jackson County.

On January 7, 1981, plaintiff and owner filed a stipulation for dismissal, alleging that a settlement of all issues had been reached between plaintiff and owner, First National Bank and Trust Company, and asking the court to dismiss with prejudice the cause as to First National Bank and Trust Company. On that same date, the court approved the stipulation and dismissed with prejudice plaintiff’s claim against First National Bank and Trust Company. This left only plaintiff’s claim against defendant/contractor, Henry Ross Construction Company, Inc.

On July 27, 1987, defendant filed a counterclaim against plaintiff alleging that plaintiff had breached the subcontract by refusing and neglecting to employ a sufficient number of skilled laborers to complete its work in an expeditious manner, thereby delaying, hindering and obstructing completion of the project. As a result of plaintiff’s breach of the subcontract, the counterclaim alleges, defendant has suffered damages in an amount in excess of $15,000.

On August 10, 1987, in response to defendant’s notice to produce, plaintiff filed an affidavit of compliance in which it stated that it would not produce certain documents relating to its mechanic’s lien because,

“[sjince the complaint against the owner has been settled and since this matter is brought as a suit for money judgment under Section 28 of the Mechanics’ Liens Act by Plaintiff subcontractor against Defendant contractor, this is no longer a suit for mechanic’s lien but rather a suit on the contract and contract documents between Plaintiff and Defendant.”

In response to this statement by plaintiff, defendant filed a motion to dismiss the complaint alleging that since the action against the owner had been settled, there was no longer any lien on the property, and therefore, there can be no action under section 28 of the Mechanics’ Liens Act; that plaintiff is now attempting to assert a common law claim for money damages for breach of contract; that this claim is barred by the subcontract, which requires that any such claims be submitted to arbitration; that plaintiff’s complaint cannot be amended to state a cause of action for breach of contract or for collection on a written contract as any such claim is barred by the statute of limitations; and that plaintiff cannot at this late date assert a right to arbitration.

Hearing was held on the motion on September 17, 1987. Plaintiff responded to defendant’s motion in part by arguing that it seeks to proceed on its amended complaint under the contract; that arbitration is no longer appropriate because defendant has waived his right to arbitration by filing a counterclaim on the contract, but that if the court feels arbitration is appropriate, it should stay any further proceedings in the circuit court and submit the cause to arbitration, rather than dismiss it. Finally, plaintiff asked that, if the court determines that its complaint does not state a good cause of action for breach of contract, that it be granted leave to amend its complaint. Defendant responded that to allow the cause to go to arbitration, or to allow plaintiff to amend his complaint would be unfair to defendant, whose records had been destroyed in a tornado in 1983.

The court found that plaintiff had insisted throughout the proceedings that its cause of action was brought under section 28 of the Mechanics’ Liens Act, thereby limiting the defendant in his defenses and discovery, and that plaintiff had opposed submitting its claim to arbitration. The court found that plaintiff had at no time pleaded a cause of action for money damages under the contract pursuant to contract law, and that to allow plaintiff to do so now would be prejudicial to defendant due to the substantial lapse of time and the loss of defendant’s records. Finally, the court found that defendant had not waived its right to arbitration by filing the counterclaim. The court denied plaintiff’s request for leave to amend its complaint and its request to submit the cause to arbitration and dismissed plaintiff’s complaint with prejudice. Defendant’s counterclaim was dismissed without prejudice.

Plaintiff filed its notice of appeal on December 9, 1987, and an amended notice of appeal on December 18, 1987, appealing from the court’s order denying its motion to amend its complaint and dismissing its complaint with prejudice. We reverse the order of the trial court dismissing plaintiff’s complaint with prejudice and remand this cause with directions that proceedings be stayed in the circuit court, and that the cause be submitted to arbitration in accordance with the terms of the parties’ contract and applicable law.

The trial court dismissed plaintiff’s complaint with prejudice for the following reasons: plaintiff was no longer seeking relief under section 28 of the Mechanics’ Liens Act (the lien having been extinguished by settlement with the owner), but was seeking relief under a common law theory of breach of contract; such a claim could not be litigated in the circuit court, but was subject to arbitration pursuant to the contract of the parties; plaintiff had opposed arbitration when the suit was initially filed and therefore was no longer entitled to arbitration; the cause could not proceed in the circuit court as defendant had been limited in its defenses and discovery by plaintiff’s insistence that its cause was one under section 28 of the Mechanics’ Liens Act; and to allow plaintiff to amend its complaint to state a common law action for breach of contract at this late date would prejudice defendant, especially since defendant’s records had been destroyed in a tornado.

The trial court is correct that plaintiff’s cause of action is no longer governed by section 28 of the Mechanics’ Liens Act. Plaintiff’s lien on the owner’s property was released by the settlement of claims between the owner and plaintiff. Therefore, plaintiff is not entitled to proceed under section 28 of the Mechanics’ Liens Act. However, plaintiff may still have a cause of action under the contract for monies due thereunder. The trial court recognized this, but found that plaintiff could not proceed in the circuit court on such a claim because the contract between the parties provides that any claims under the contract must be submitted to arbitration. The court found that plaintiff was no longer entitled to arbitration because it had opposed arbitration when the suit was initially filed.

We think the trial court erred in so holding. Plaintiff properly opposed arbitration when the suit was initially filed. At the time the suit was filed, it was in fact brought under section 28 of the Mechanics’ Liens Act. Therefore, it was not subject to arbitration under the terms of the parties’ contract. It was plaintiff’s right to oppose arbitration at that point. We see no reason to punish plaintiff now for exercising that right. The suit did not become subject to arbitration until claims against the owner were settled and plaintiff’s lien was released.

The trial court apparently felt that to allow plaintiff to proceed at this point on a claim for money damages under the contract would prejudice defendant, which had been limited in its defenses and discovery by plaintiff’s characterization of the suit as one under section 28 of the Mechanics’ Liens Act. However, it is our opinion that plaintiff’s claim has at all times been one for money damages under the terms of the contract, even though it was brought under section 28 of the Mechanics’ Liens Act.

Section 28 of the Mechanics’ Liens Act specifically authorizes a joint action against both the owner and" the contractor for money damages under the subcontract. If the lien against the owner’s property is for any reason defeated, plaintiff is still entitled to pursue its claim for money damages against the contractor. • This is the relief which plaintiff has sought from the beginning of this action. The issues remain substantially the same whether the action is pursued under section 28 of the Mechanics’ Liens Act or under a common law theory of breach of contract. We fail to see how defendant’s defenses and discovery have in any way been limited, nor do we see any prejudice to defendant resulting from the lapse of time. That defendant’s records were destroyed by a tornado is unfortunate, but is not the fault of plaintiff and does not justify dismissal of plaintiff’s complaint with prejudice.

Further, the record reflects that defendant was aware that plaintiff was seeking money damages for breach of contract. In a motion to dismiss the amended complaint, filed May 22, 1980, defendant requested dismissal because the amended complaint “apparently alleges an action for breach of contract and also an action for Illinois Mechanic’s Lien Foreclosure or judgment, each of which should be set out in separate counts, if that is plaintiff’s theory.” Clearly, plaintiff’s complaint does not seek foreclosure of the mechanic’s lien, but seeks only a money judgment for breach of contract. Furthermore, defendant filed a counterclaim alleging breach of contract by plaintiff.

The granting of a motion to dismiss a complaint is within the sound discretion of the trial court. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976, 983.) We find that the trial court abused its discretion in dismissing plaintiff's complaint with prejudice. Instead of dismissing plaintiff’s complaint with prejudice, the trial court should have stayed further proceedings thereon and submitted the cause to arbitration in accordance with the parties’ contract and applicable law.

Section 2 of the Arbitration Act provides that any action or proceeding involving an issue subject to arbitration shall be stayed if an application for arbitration has been made. (Ill. Rev. Stat. 1987, ch. 10, par. 102.) At the hearing on the motion to dismiss, plaintiff requested that, instead of being dismissed with prejudice, the cause be submitted to arbitration. The court should have granted plaintiff’s request.

In its reply brief, plaintiff argues for the first time that defendant has waived its right to arbitration by filing a counterclaim alleging breach of the subcontract by plaintiff. It is well settled that points not raised in the opening brief may be deemed waived and cannot be raised in the reply brief. (Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 793, 424 N.E.2d 911, 917.) Plaintiff has waived this issue.

In any event, this issue was presented to the trial court, which found that defendant had not waived its right to arbitration by filing a counterclaim. We agree. Arbitration is a favored method of resolving disputes in Illinois, and a waiver of the right to arbitrate is disfavored. (Cencula v. Keller (1987), 152 Ill. App. 3d 754, 756, 504 N.E.2d 997, 999.) Waiver may occur when a party acts in a manner which is inconsistent with the arbitration clause, thus indicating abandonment of the right. (Cencula, 152 Ill. App. 3d at 757, 504 N.E.2d at 999.) While it has been held that submitting arbitrable issues to a court of law, as by filing a counterclaim, may result in the waiver of the right to arbitration (Brennan v. Kenwick (1981), 97 Ill. App. 3d 1040, 1042-43, 425 N.E.2d 439, 441), the filing of a counterclaim and answer does not automatically result in waiver of arbitration rights. (Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 555, 518 N.E.2d 172, 177.) We do not think, on the facts of this case, that defendant has acted in such a manner as to abandon its right to arbitration. Defendant asserted its right to arbitration early in the proceeding, but was denied. As in Edward Electric Co., the filing of a counterclaim by defendant was merely responsive and done only to protect defendant’s rights. Defendant did not act in a manner inconsistent with the arbitration clause.

Accordingly, we reverse the order of the circuit court of Jackson County dismissing plaintiff’s complaint with prejudice and remand this cause with directions that further proceedings in the circuit court be stayed and that an appropriate order be entered submitting this cause to arbitration in accordance with the parties’ contract and applicable law.

In light of this decision, we need not discuss further the denial of plaintiff’s motion to amend its complaint. However, plaintiff does present for our consideration one additional issue: whether the circuit court of St. Clair County erred in granting the motion of owner, First National Bank and Trust Company, to transfer venue from St. Clair County to Jackson County, the location of the property.

Plaintiff argues that the trial court erred in transferring venue because owner’s motion was not timely filed. Section 8(2) of the Civil Practice Act, in effect in 1980 when the owner’s motion was filed, is substantially similar to section 2 — 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 104(b)), which provides that all objections to improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by the defendant on or before the date upon which he is required to appear, or within any further time that may be granted him to answer or move with respect to the complaint. Plaintiff argues that owner’s motion to transfer venue was not timely filed, that therefore owner had waived any objection to venue, and its motion should not have been granted. However, the record reflects that owner filed its motion to transfer venue prior to the time it filed any responsive pleading to plaintiff’s complaint. Although it had been served with process on June 14, 1976, and did not file its motion to transfer venue until June 23, 1980, it would appear that the motion was still filed within the time granted by the court to owner to plead with respect to the complaint. The owner had not been adjudged in default, and in fact filed a motion to dismiss plaintiff’s complaint on September 28, 1981. The trial court apparently did not believe that owner had waived its right to object to venue, nor do we so find.

Of greater concern is plaintiff’s argument that the venue provision of the Mechanics’ Liens Act does not apply to a suit brought under section 28 against an owner and contractor jointly for money damages. The venue provision of the Mechanics’ Liens Act is found in section 9, and provides that a suit to enforce a lien may be brought in the county where the property is located. (Ill. Rev. Stat. 1987, ch. 82, par. 9.) Section 28, under which the instant action was brought, provides that a subcontractor may either file a complaint to enforce its lien within the same limits as to time and in such other manner as provided in the Mechanics’ Liens Act, or it may sue the owner and contractor jointly for the amount due in the circuit court, and a personal judgment may be rendered therein, as in other cases. (Ill. Rev. Stat. 1987, ch. 82, par. 28.) A simple reading of this language indicates that the legislature did not intend the technical procedural requirements of the Mechanics’ Liens Act to apply to actions brought against the owner and contractor for money damages. No venue is designated for such suits, and judgment may be entered as in other cases. Thus, it appears that the provisions of the Code of Civil Procedure apply to actions brought against the owner and contractor jointly under section 28 of the Mechanics’ Liens Act.

In Garbe Iron Works, Inc. v. Priester (1983), 99 Ill. 2d 84, 457 N.E.2d 422, the court held that, in an action brought under section 28 of the Mechanics’ Liens Act against the owner and contractor jointly, the two-year statute of limitations provided in the Mechanics’ Liens Act did not apply. Instead, the five-year statute of limitations provided in the Limitations Act applied. Similarly, in this case, we find that the venue provision of the Mechanics’ Liens Act did not apply to an action brought against the owner and contractor jointly for money damages. Instead, the venue provisions of the Code of Civil Procedure apply and the circuit court of St. Clair improperly transferred venue to Jackson County based upon the provisions of the Mechanics’ Liens Act. Accordingly, we reverse the order of the circuit court of St. Clair County transferring venue to Jackson County.

On remand, we direct Jackson County to transfer this cause back to the circuit court of St. Clair County. We further direct the circuit court of St. Clair County to enter an appropriate order staying further proceedings in this cause pending the conclusion of arbitration proceedings.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed, the order of the circuit court of St. Clair County is reversed, and this cause is remanded with directions.

Reversed and remanded with directions.

HARRISON and CHAPMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    HEUER SONS IMPLEMENT COMPANY, INC., Plaintiff-Appellant, v. CLETUS DUKES, Defendant-Appellee.
    Fifth District
    No. 5—88—0355
    Opinion filed April 28, 1989.

      Tom K. O’Loughlin II and Kathleen A. Wolz, both of O’Loughlin, O’Loughlin & McManaman, of Cape Girardeau, Missouri, for appellant.
    William Rudert, of Mike McCormick & Associates, of Vienna, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Heuer Sons Implement Company, Inc., appeals from a judgment of the circuit court of Johnson County which dismissed, with prejudice, its cause of action against defendant, Cletus Dukes. The judgment of dismissal was entered by the circuit court pursuant to Supreme Court Rule 219(c)(v) (107 Ill. 2d R. 219(c)(v)) based on defendant’s claim that plaintiff had not obeyed an order entered by the court pertaining to discovery and had otherwise refused, unreasonably, to comply with discovery rules. What is particularly unusual about the situation here is that the misdeeds which occasioned the imposition of sanctions against plaintiff occurred not in this litigation, but in a prior lawsuit which plaintiff had voluntarily dismissed pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009). For the reasons which follow, we hold that the judgment of dismissal cannot be sustained. We therefore reverse and remand.

The circumstances giving rise to this appeal are not in dispute. The record indicates that several years ago plaintiff filed a lawsuit against defendant in the circuit court of Johnson County. In the course of that litigation, defendant moved to dismiss plaintiff’s action with prejudice under Supreme Court Rule 219 (107 Ill. 2d R. 219) on the grounds that plaintiff had failed to comply with a discovery order entered by the court and had “otherwise failed to comply with discovery.” Before the circuit court ruled on defendant’s motion, plaintiff voluntarily dismissed its complaint without prejudice pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009). Plaintiff then filed a new action against defendant under authority of section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), which permits a plaintiff to refile an action within one year of a voluntary dismissal or within the remaining period of limitations, whichever is greater.

Once the new action had been commenced, defendant filed a new motion asking that it be dismissed with prejudice pursuant to Supreme Court Rule 219 (107 Ill. 2d R. 219). In his new motion, defendant did not claim that any additional discovery violations had been committed by plaintiff. Rather, he merely invoked the same grounds upon which his prior motion in the previous action had been based. Defendant’s theory was that imposition of sanctions in the present case was necessary to prevent the procedures for taking a voluntary dismissal from being abused and utilized simply to evade rules and court orders relating to discovery. The circuit court agreed, and plaintiff’s new cause of action was dismissed with prejudice. This appeal followed.

The imposition of sanctions under Supreme Court Rule 219 (107 Ill. 2d R. 219) for abuse of discovery rules and court orders is a matter within the discretion of the circuit court, and that court’s decision will not be disturbed absent an abuse of discretion. (Miller v. Board of Education, District 189 (1983), 119 Ill. App. 3d 88, 94, 456 N.E.2d 143, 147.) The sanction of dismissal with prejudice is, however, the most severe available to the court and is to be employed only as a last resort. (Lafin v. Allstate Insurance Co. (1988), 168 Ill. App. 3d 1075, 1077-78, 523 N.E.2d 106, 108.) The sanction should be invoked only in those cases where the actions of the party show a deliberate, contumacious or unwarranted disregard of the court’s authority. (In re Application of County Treasurer (1986), 150 Ill. App. 3d 696, 701, 502 N.E.2d 268, 272.) No such conduct has been claimed or established in the present case. The only discovery abuses plaintiff is alleged to have committed occurred in the earlier action, which, as we have indicated, plaintiff voluntarily dismissed without prejudice pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009).

At the time plaintiff took its voluntary dismissal, it had an absolute right to do so and to file a new action in accordance with section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217). This was so even though plaintiff’s purpose in taking the voluntary dismissal was to escape defendant’s pending motion for discovery sanctions under Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)). (Lafin v. Allstate Insurance Co. (1988), 168 Ill. App. 3d 1075, 1078, 523 N.E.2d 106, 108-09.) If defendant here were now allowed to invoke plaintiff’s misconduct in the prior action to obtain sanctions against plaintiff in this case, the absolute right secured to plaintiff to take a voluntary dismissal and file a new action later under the foregoing statutory provisions would be rendered meaningless.

Defendant attempts to resist this conclusion by invoking our supreme court’s decision in O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. Defendant argues that under O’Connell, the circuit court here properly considered the discovery violations committed by plaintiff in the prior case when it assessed the sanctions against plaintiff in the present case. We disagree. O’Connell dealt with a motion to dismiss under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) for lack of due diligence in obtaining service of process, not, as in this case, a motion to dismiss for failure to comply with rules or court orders pertaining to discovery. Cases decided after O’Connell have made clear that it should be read and applied narrowly (see Gibellina v. Handley (1989), 127 Ill. 2d 122), and its holding has been limited to situations involving motions filed pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). See Lafin v. Allstate Insurance Co. (1988), 168 Ill. App. 3d 1075, 1078, 523 N.E.2d 106, 109.

Although plaintiff had an absolute right to voluntarily dismiss its complaint and then refile at the time of the events giving rise to this appeal, our supreme court has now altered the standards applicable to voluntary dismissals under section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009). In Gibellina v. Handley (1989), 127 Ill 2d 122, 138, the court held that a trial court may now hear and decide “a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” (Emphasis in original.) In announcing this new rule, however, the supreme court expressly stated that it would be applied “effective as of the date of filing of this opinion and prospectively only.” (Gibellina v. Handley, 127 Ill. 2d at 137.) We therefore express no view as to how, if at all, the new rule may have affected the situation present here.

For the foregoing reasons, the judgment of the circuit court of Johnson County dismissing plaintiff’s cause of action with prejudice is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

WELCH, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN PECKA, Defendant-Appellant.
    Fifth District
    No. 5—87—0155
    Opinion filed May 1, 1989.

      Daniel D. Yuhas and Thomas M. Gabrielsen, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Sherri L.E. Tungate, State’s Attorney, of Louisville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

The defendant, John Pecka, appeals from the trial court’s denial of his amended petition for post-conviction relief in a judgment entered February 1, 1987. On July 19, 1982, defendant was sentenced to 30 years’ imprisonment for murder. The conviction and sentence were affirmed on direct appeal. (People v. Pecka (1984), 125 Ill. App. 3d 570, 466 N.E.2d 404.) In the direct appeal four issues were presented for review: (1) whether defendant was denied a fair trial by the court’s failure to provide the jury with the proper instruction concerning the affirmative defense of voluntary intoxication; (2) whether the evidence at trial was sufficient to prove defendant guilty beyond a reasonable doubt; (3) whether defendant was unfairly prejudiced by certain of the prosecutor’s statements made during closing argument; and (4) whether the sentence imposed was excessive.

On August 17, 1983, the defendant filed pro se a petition for post-conviction relief, which he later withdrew voluntarily on the advice of appointed counsel because his direct appeal had not yet been heard. On July 13, 1984, the opinion in the direct appeal was filed in this court. On August 20, 1984, defendant filed pro se a petition for post-conviction relief, which was subsequently amended by appointed counsel and filed on May 13, 1985. In the amended petition defendant sought to have his murder conviction reversed. and the cause remanded for a new trial principally on the basis of the denial of his constitutional rights of due process and the effective assistance of appellate counsel. The State moved to deny and to dismiss the amended petition. The trial court dismissed the amended petition but subsequently allowed the defendant’s motion to reconsider the order of dismissal. Following a hearing on December 4, 1986, the trial court entered judgment on February 1, 1987, denying the amended petition. From that judgment this appeal has been taken.

In the amended petition the defendant alleged that the trial court had denied him his constitutional rights of due process and effective assistance of counsel “when it denied defense counsel the right to introduce into evidence the blood alcohol level of the deceased for the purpose of establishing the defense of accident,” thereby precluding him from “arguing a reasonable theory of innocence.” He alleged further in the amended petition that his constitutional rights had been violated by certain remarks of the trial court that “demeaned defense counsel in the jury’s presence, and unnecessarily implied to the jury that defense counsel was both delaying the trial and imposing upon the Court and the jury.” The defendant alleged as well that the trial court violated his constitutional rights by “[fjorcing the jury to deliberate from 1:00 p.m. on June 16, 1982, until 2:50 a.m., June 17, 1982,” thereby placing “an undue physical and emotional burden upon the jury and den[ying] Petitioner his Fifth Amendment Right to due process of law and his Sixth Amendment Right to a fair and impartial jury.” With regard to this contention the defendant stated further:

“The early hours of the morning presented an abnormal and unreasonable time and situation for persons unaccustomed to them to make a decision as important as a verdict in a murder trial. The pressure was abnormal and unreal and due only to the Court’s private time constraint.”

The defendant alleged “a conflict with the Mt. Vernon office of the State Appellate Defender’s Office, or at least one which would lend the appearance of impropriety to his representation by that office so that the Sixth Amendment, fundamental fairness, and due process preclude this Court from considering issues raised in his appeal as being barred by the doctrines of res judicata or collateral estoppel.” Several extensive exhibits were attached to the amended petition. The defendant made numerous other allegations pertaining to the denial of his constitutional rights that are not addressed in this appeal; hence, we need not discuss them.

At the hearing on the amended petition on December 4, 1986, the court heard argument, but no testimony was preferred. Counsel newly appointed for the defendant stressed at this hearing that, although the defendant had indicated to. appellate counsel that he had wanted certain of these issues raised in the direct appeal, appellate counsel did not raise them.

In a nine-page judgment the trial court considered all the allegations of the amended petition. With regard to the defendant’s contention that he was denied the right to present a full defense because the trial court had excluded evidence of the victim’s alleged intoxicated condition, the court stated:

“Clearly, this issue could have been presented to the Appellate Court on defendant’s direct appeal. It was not. Nor is the failure. so' to do a matter of fundamental fairness. The relevance of the victim’s alleged intoxicated state to the issues at trial was, at very best, tangential. It was, therefore, not a violation of defendant’s constitutional rights to refuse to allow it into evidence even assuming, ad [sic] arguendo, that it was error not to do so.”

Concerning the defendant’s allegations pertaining to improper remarks of the trial court and the inordinate length of the jury’s deliberations, the court observed:

“These related issues could have been presented on direct appeal but were not. Nor did defendant’s privately retained trial counsel perceive the conduct of the trial court in these matters to be improper. A review of those portions of the transcript of proceedings cited by defendant in support of these arguments establishes conclusively that, as a factual matter, no such abuses occured [sic]. The conduct of the trial judge towards defense counsel was proper. Any time constraints were in the interest of judicial economy and did not impinge upon the right of all parties to a full and fair trial. The jury’s deliberations into the night were not so long or late as to raise any inference that a verdict was forced contrary to the decision of any one or more of the jurors.”

In this appeal the defendant presents three issues for our review; with respect to each of these issues he claims ineffective assistance of appellate counsel in the direct appeal for failure to raise each issue at that time: (1) whether the defendant was denied his constitutional right to present his defense “where the trial court refused to admit into evidence on irrelevance grounds proof of the victim’s intoxication, where such evidence was relevant to Mr. Pecka’s theory that the shooting was accidental and that the victim’s act of falling into Mr. Pecka caused the revolver to discharge”; (2) whether defendant was denied the right to a fair trial “where the trial court criticized defense counsel in the presence of the jury for the timing of a recess in the defendant’s case, where the court’s hostility and attempt at judicial humor served only to influence the jury and prejudice Mr. Pecka”; and (3) whether the trial court abused his discretion “in compelling the jury to deliberate from 1:00 p.m. to 2:50 a.m., where a period of deliberation of that length was unreasonable, thereby rendering that verdict a product of an improper coercive influence, and where the court’s discretion was exercised with a view toward the expeditious conclusion of trial rather than ensuring that the jury’s verdict was reached through voluntary agreement.”

During the pendency of this appeal the defendant has sought to supplement the record on appeal. He has filed two motions in that regard, one to supplement the record on appeal and another to amend his motion to supplement the record on appeal. The State has filed objections to both motions, which have been taken with the case. In his motion to supplement the record on appeal defendant seeks to include in the record a copy of a letter from him to appellate defense counsel in the direct appeal dated May 5, 1983, in which he refers to a “list of issues in my case,” together with a copy of the list, which was, he says, originally attached to the letter. The list and letter, he states, were sent to appellate counsel prior to the filing of his brief in the direct appeal. A copy of the letter in question is already included in the record on appeal. However, neither the original nor a copy of the list is included in the record on appeal. The list contains 11 items, of which the eighth and ninth correspond to the first and third issues now presented for review. In its objection to the motion the State argues, inter alia, that there is nothing to show that the copy of the list with which he wishes to supplement the record is the same list to which defendant refers in the letter of May 5, 1983.

In his motion to amend his motion to supplement the record on appeal defendant seeks to supplement the record with the original letter of May 5, 1983, and the original list, which, he states in an affidavit, he stapled together and sent to appellate defense counsel in the direct appeal. In this second motion defendant asserts that the list in question was

“never presented to the circuit court that heard the post-conviction proceedings. Mr. Pecka only moves to supplement the present record with the ‘list’ for the limited purpose of informing this court of what was in possession of direct appellate counsel at the time Mr. Pecka’s direct appellate brief was prepared and filed, and especially to give context to the [copy of the] letter [of May 5, 1983,] found at C. 468 of the record on appeal.”

The State objects to the inclusion of the list because it places before the appellate court evidence not before the trial court, where its authenticity ought to have been established. However, inasmuch as the State cannot be prejudiced by the inclusion of these items in the record on appeal, we hereby grant the defendant’s two motions previously taken with the case.

With regard to the first issue defendant now presents for review, he maintains that the proof of the victim’s intoxication, which he sought to introduce into evidence at trial, was relevant for the purpose of proving his defense of accident and that the court’s refusal to admit this evidence denied him the right to present his defense fully. On the evening of December 16, 1981, the defendant was at the mobile home of Marie Kuhlman and Randy Meares. Four other persons were present, including the victim, Scott Merritt. On the evening in question, defendant was carrying a .38 revolver, which, as he held it, discharged into the head of the victim, killing him. Evidence was conflicting as to whether the defendant and the victim had argued just prior to the discharging of the gun. Randy Meares testified that the defendant and the victim had not argued. This witness stated that at the time of the shooting more than one conversation was being carried on by the persons present. He said further that, when asked immediately after the shooting what had happened, the defendant responded, “I don’t know.” Prior to the shooting the defendant was seated. The witness did not see the defendant when the shot was fired but, after hearing it, turned to look. He described the defendant’s position immediately after the shot was fired as follows: “Just like someone had put their arms on a chair and come up. He was still kind of bent over like he hadn’t fully risen yet.” The witness testified that the mobile home was not level, “off probably an inch or more,” sloping toward the northwest comer where, according to the defendant in his brief, the defendant was seated, although the record is not clear as to the defendant’s precise location. Marie Kuhlman described the defendant’s position just after the shot was fired as “a crouched position like he was just standing up.” At the time the shot was fired she was cooking; when she heard it, she looked up. Immediately after the shooting she heard defendant say, “Oh, my God, I don’t know what happened. It just went off.” One of the persons present at the time of the shooting, Richard Gregory, testified that he did not hear any argument or dispute between the defendant and the victim just prior to the shooting, at which time he was seated two to three feet from the defendant. This witness appears not to have observed the defendant or the victim at the time the weapon discharged.

One of the persons present when the shooting occurred, Robert Thomson, testified that while the defendant and victim were both seated, just prior to the shooting, the defendant had told the victim to step into the kitchen, that the victim had told the defendant to “put the gun away,” and that the defendant had responded, “Them are fighting words.” During this conversation, the witness stated, the victim got up and moved away from the defendant toward the witness. At the conclusion of the conversation just described, the defendant stood up, moved toward the victim, held the gun, which he had just taken from a shoulder holster, to the head of the victim and pulled the trigger. He estimated the distance between the gun when it discharged and the head of the victim as about six inches but had not been able to see the end of the gun because of his position with regard to the victim at the time. The witness was impeached by a prior inconsistent statement given about two hours after the shooting occurred in which he indicated to police that, after the victim had told the defendant to take off his gun, the defendant had said “all right,” and had pulled out the gun, which, when he did so, “went off.” Another of the persons present when the shooting occurred was Donald McElyea, whose account of the events associated "with the shooting was like that of Robert Thomson at trial. Donald McElyea testified that after the defendant pulled the gun from the shoulder holster, he cocked it, pointed it at the victim, and “[s]hot him.” This witness testified that after the shot was fired, the victim stumbled and fell to the floor. He testified to a “gap” between the gun and victim’s head when the gun discharged, but he was unsure of the distance involved.

The defendant was able to recall almost nothing of the events associated with the shooting. Evidence was conflicting as to whether the defendant had experienced an alcoholic blackout on the evening of the shooting. The defendant had had training in firearms during a 240-hour police training course, in which he used a revolver, at the Police Training Institute.

The pathologist who had performed an autopsy upon the victim’s body testified that the bullet had entered the left cheek. The witness expressed the opinion, based upon the condition of the wound, that the muzzle of the gun was in contact with or extremely close to the victim’s cheek when the shot was fired. James Kreiser, a forensic scientist specializing in firearms and tool mark examinations, testified that the “trigger pull” of the defendant’s revolver was llsk pounds when the gun was not cocked and 3x/2 pounds when it was, that is, when the hammer had been pulled back. The witness discussed the safety mechanisms of this particular weapon, two of which were the amount of pressure required to pull the trigger and the need to pull the trigger in order to fire the gun. From his examination of the wound, this witness had determined that, when the weapon was discharged, the end of the barrel was in contact with the cheek of the victim.

The defendant sought to introduce into evidence the coroner’s toxicology report pertaining to the blood-alcohol level of the victim. The trial court sustained the State’s objection based on relevancy. In an offer of proof the coroner of Clay County, Joseph Cardasio, testified that the amount of alcohol shown to be in the victim’s blood was 0.174. Defense counsel argued that the toxicology report was relevant “from the point of view if somebody is intoxicated, they may stumble or fall.” Defense counsel took the position that “to deprive us of this report would deprive us from making a statement in final argument as to how we believe this actually occurred.” Defense counsel argued further that the State’s witnesses had testified that the gun when it discharged was “a distance” from the victim but that the “State’s expert says the gun was in contact”; counsel concluded, “There is no question in my mind the witnesses didn’t really see what happened. And if the witnesses didn’t see what happened, they might not have seen Mr. Merritt stumble or fall.” The trial court concluded: “I won’t let you admit this on the point you made. Think it’s clearly inadmissible. I don’t think evidence is admissible solely for the purpose of establishing a basis for an argument to the jury. Don’t think that is the test.”

In his brief on appeal defendant argues that “[i]t is entirely likely that the gap [between the weapon and the victim’s cheek] could have been closed by Merritt’s stumbling or falling in the direction of Mr. Pecka’s hand which contained the revolver and that the discharge occurred as Merritt’s face actually struck the revolver, causing it to discharge.” The slope of the trailer “toward the comer in which Mr. Pecka was seated,” defendant proposes, “might have been responsible for propelling Merritt toward the chair occupied by Mr. Pecka.” With respect to this issue defendant contends that it may not be deemed waived for failure to raise it in the direct appeal because of appellate counsel’s ineffective assistance in failing to raise the issue at that time.

Generally, issues which could have been raised in the appellate court, but which were not, are waived. (People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.) However, the doctrine of waiver ought not to bar issues from consideration where the alleged waiver stems from incompetency of appointed counsel on appeal. (People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005; People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25.) The Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1 et seq.) provides a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal, the right to competent counsel on appeal, or the concept of fundamental fairness. (People v. Frank, 48 Ill. 2d 500, 272 N.E.2d 25.) Where necessary the Act may serve to vitiate the prejudice of waiver attendant upon incompetence of counsel on appeal, by serving as a vehicle for review of all directly appealable issues. (People v. Frank, 48 Ill. 2d 500, 272 N.E.2d 25.) Therefore, whether the defendant is entitled to review under the Act of the issue pertaining to the exclusion from evidence of the toxicology report of the victim’s blood-alcohol level depends upon the determination of his allegation that failure to raise the issue on appeal constituted incompetence of his appointed counsel. See People v. Frank, 48 Ill. 2d 500, 272 N.E.2d 25.

There is no obligation of appointed counsel to brief every conceivable issue on appeal; nor is it incompetence for counsel to refrain from raising those issues which, in his or her judgment, are without merit, unless counsel’s appraisal of the merits is patently wrong. (People v. Barnard, 104 Ill. 2d 218, 470 N.E.2d 1005; People v. Frank, 48 Ill. 2d 500, 272 N.E.2d 25; People v. Adams (1987), 164 Ill. App. 3d 742, 518 N.E.2d 266; People v. Bailey (1986), 141 Ill. App. 3d 1090, 490 N.E.2d 1334; People v. Krankel, 131 Ill. App. 3d 887, 476 N.E.2d 777.) Further, in order to establish a claim of ineffective assistance of counsel, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246; People v. Krankel, 131 Ill. App. 3d 887, 476 N.E.2d 777.) Recently, in People v. Caballero (1989), 126 Ill. 2d 248, 269-70, 533 N.E.2d 1089, 1096, the supreme court stated that the two-part Strickland standard (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052), which was adopted by our supreme court in Albanese with regard to claims of ineffectiveness of both retained and appointed trial counsel, applies

“a fortiori to a claim that an appellate advocate chose the wrong issues or argued them ineffectively. Where the defendant maintains, for example, that his appellate attorney failed to argue a particular issue, he must show the failure to raise that issue was objectively unreasonable, as well as a reasonable probability that, but for this failure, his sentence or conviction would have been reversed.”

In Albanese (104 Ill. 2d at 527, 473 N.E.2d at 1256), the court noted the guidelines set forth by the Supreme Court in Strickland for applying its two-component standard: ‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ ”

We have weighed the merits of the issue of the exclusion from evidence of the toxicology report pertaining to the victim’s blood-alcohol level, which issue was fully briefed by counsel appointed in these proceedings. We conclude that the issue was not patently meritorious so that the failure of appellate counsel to raise the issue in the direct appeal constituted incompetence. In view of the evidence, we do not think that there is a reasonable probability that, had this evidence been admitted into evidence, the outcome of the defendant’s trial would have been different. Nor do we think that, had defense counsel presented this issue for review upon direct appeal, there is a reasonable probability that the outcome of that appeal would have been different. There was no evidence that prior to the shooting the victim stumbled, swayed, fell, or leaned into the defendant’s revolver, a projectile from which indisputably caused his death. There was no evidence to suggest that, in fact, the victim lost his balance in any way until after he had been shot, at which time, according to the testimony of Donald McElyea, he did, indeed, stumble and fall to the floor. Furthermore, the evidence was uncontradicted that one of the safety mechanisms with which the defendant’s weapon was equipped was the need to pull its trigger in order for the gun to fire. Likewise uncontradicted was evidence of another of the gun’s safety mechanisms, the amount of pressure required to pull the trigger, 3V2 pounds when the gun was already cocked and ll3/4 pounds when it was not. Even if it were error for the trial court to have excluded the toxicology report from evidence on the basis of irrelevance, its inclusion would not, we think, have resulted in a different outcome at trial. Hence, appointed counsel’s appraisal of the merits of this issue was not patently wrong. Nor was the failure of appellate counsel to raise the issue objectively unreasonable. Counsel cannot be said to have rendered ineffective assistance to the defendant for failure to raise this issue in the direct appeal. Thus, this issue, which could have been raised in the direct appeal, is properly deemed waived for purposes of defendant’s post-conviction petition. Accordingly, we affirm the trial court’s denial of the amended post-conviction petition as to this issue.

Concerning the second issue now presented for review, the defendant contends that the following colloquy between defense counsel and the court at the conclusion of the defendant’s testimony deprived him of a fair trial as a consequence of the trial court’s “hostility and attempts at judicial humor.”

“MR. SEYMOUR [Defense counsel]: I have no other witnesses to call today, Your Honor.
THE COURT: You mean we’re going to quit here in the middle of the afternoon?
MR. SEYMOUR: Think it would be a good time.
THE COURT: My dad never did let me unhitch until about sundown.
MR. SEYMOUR: I’m not quitting. I have other work to do.
THE COURT: Well, if they don’t have any more things to tell us now, I guess we better go home. So you do that and don’t talk about this case among yourselves or with anybody else. We’ll see you at 9:30.”

The entry on the record sheet indicates that on that date, June 14, 1982, the trial was recessed at 2:30 p.m. As he did with regard to the first issue here presented, defendant maintains that he was denied the effective assistance of counsel when counsel failed to raise this issue in the direct appeal.

Again, we have weighed the merits of this issue, fully briefed by counsel appointed in these proceedings. The defendant points out correctly that it is improper for a court to convey to a jury a belittling and resentful attitude toward defense counsel (People v. Marino (1953), 414 Ill. 445, 111 N.E.2d 534), and that attempts at judicial humor by a judge during a trial are ill-advised and inappropriate to the performance of judicial duties. (People v. Merz (1984), 122 Ill. App. 3d 972, 461 N.E.2d 1380.) The State, we think accurately, describes the remarks of the trial court as “innocuous, isolated, lighthearted.” For comments by a trial judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he or she was harmed by the comments. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 449 N.E.2d 568.) We conclude that the issue was not patently meritorious so that the failure of appellate counsel to raise the issue on direct appeal constituted incompetence. In view of the nature of the remarks, any error on the part of the trial court in making them was harmless, and there appears to be no reasonable probability that, had they not been made, the outcome of the defendant’s trial would have been different or, had defense counsel presented this issue for review in the direct appeal, the outcome of that appeal would have been different. Appointed counsel’s appraisal of the merits of this issue in the direct appeal was not patently wrong, and her failure to raise the issue was not objectively unreasonable. Hence, counsel may not be said to have rendered to defendant ineffective assistance for failing to raise it. Therefore, this issue too, which could have been raised in the direct appeal, is properly deemed waived, and as to it we affirm the trial court’s denial of the defendant’s amended post-conviction petition.

We turn to the third and final issue defendant raises in this appeal, whether the trial court abused his discretion with regard to the length of the jury’s deliberations from 1 p.m. on June 16, 1982, until 2:50 a.m. on June 17. Again, he contends that counsel’s failure to raise this issue in the direct appeal constituted ineffective assistance.

The length of jury deliberations is a matter resting within the sound discretion of the trial court, and its judgment in this regard will not be disturbed unless this discretion has clearly been abused. (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170.) Whether the trial court has abused its discretion depends upon the circumstances of a given case. (People v. Daily, 41 Ill. 2d 116, 242 N.E.2d 170.) In the instant case the trial lasted six days, during which approximately 25 witnesses testified. At no time during their deliberations did the jurors indicate that they needed further instruction, were deadlocked, or were experiencing any difficulties of any kind. Nothing in the record indicates that the verdict arrived at was the result of fatigue or exhaustion. (See People v. Kinzell (1969), 106 Ill. App. 2d 349, 245 N.E.2d 319.) Trial counsel made no motion concerning the length of the jury’s deliberations. The record does not suggest either that the trial court abused his discretion in permitting the jury to deliberate as it did or that the verdict was, as the defendant urges, the product of an improper coercive influence.

For these reasons we perceive no reasonable probability that, had appellate defense counsel presented this issue for review in the direct appeal, the outcome of that appeal would have been different. Counsel’s appraisal of the merits of this issue upon direct appeal was not patently wrong, and her failure to raise the issue was not objectively unreasonable. Thus, counsel did not render ineffective assistance for failure to raise it. The issue, which could have been raised in the direct appeal, is, therefore, properly considered waived, and we accordingly affirm the trial court’s denial of the amended post-conviction petition as to this issue as well.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY PEARSON, Defendant-Appellant.
    Fifth District
    No. 5—87—0624
    Opinion filed May 2, 1989.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Roy Pearson, was charged in the circuit court of St. Clair County with residential burglary. After a trial by jury, Pearson was found guilty and sentenced to five years’ probation.

On March 17, 1987, Pearson and an accomplice broke into a house owned by Michael Tolden. A neighbor observed the break-in and called police. The police responded. The officers found the lock on the front door broken and, upon searching the premises, discovered Pearson and his accomplice hiding in the basement. A subsequent search of the suspects revealed a crescent wrench and two screwdrivers, one of which had a broken tip. Pearson indicated that he and his accomplice had entered the premises for the purpose of “getting high” on cocaine, although no drugs nor any paraphernalia were found.

The premises in question were partially furnished residential rental property. The owner, Michael Tolden, testified that the previous tenant had been evicted the day before the house was burglarized and new tenants were scheduled to move in on March 20, 1987. Tolden also testified that after the previous tenant had been evicted he inspected the premises and put a new lock on the door. After the suspects had been apprehended, Tolden again inspected the premises. He found the frames around the stained glass windows broken, as if someone were trying to remove the glass, and several sections of copper plumbing which had been broken off.

At trial, the State submitted a residential burglary instruction which was given over objection, and the defense submitted a criminal trespass instruction which was refused. The State did not submit a burglary instruction, and Pearson specifically instructed his counsel not to submit such an instruction. Pearson was subsequently found guilty of residential burglary and this appeal followed.

The sole issue on appeal concerns the statutory definition of a dwelling. Pearson argues that he could not be found guilty of residential burglary because the premises in question were not a dwelling as that term is defined for purposes of the residential burglary statute. Section 19 — 8 of the Criminal Code of 1961 defines “residential burglary” as knowingly and without authority entering into the dwelling of another with the intent to commit a felony or theft. (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3.) Section 2 — 6(b) of the Code defines “dwelling” as

“a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” Ill. Rev. Stat. 1987, ch. 38, par. 2 — 6(b).

Pearson maintains that neither the owner nor previous occupant resided there or intended to return and that the new tenants who planned to move in were not returning to reside after an absence and therefore were not occupants within the meaning of the statute.

We do not agree with defendant’s argument. Defendant places much emphasis on the concept of an absent owner or occupant “returning” to the premises in question, the underlying argument being that the owner/occupant must have previously lived at the premises and subsequently left with the intent to return within a reasonable period of time. This is the premise for Pearson’s argument that the new tenants were not covered by the statute. A careful reading of the statute, however, does not support this premise. There is no language in the statute which requires an owner or occupant to have previously resided at the particular premise and be returning after an absence. An identifiable owner or occupant coupled with the requisite intent is all that is required by the statute and those requirements are clearly met in this case. Tolden’s testimony that a new tenant was to move in on March 20, 1987, was uncontradicted.

We note that the definition of “dwelling” was recently amended for purposes of the residential burglary statute. Under the old definition, a dwelling was “a building, or any portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home, or residence.” (Ill. Rev. Stat. 1985, ch. 38, par. 2 — 6.) The legislative history indicates that the amendment was made because suspects were being prosecuted for residential burglary for breaking into abandoned buildings and unoccupied buildings, such as garages. The legislative history also indicates that the new definition of dwelling was intended to encompass vacation homes and the like, where there are identified owners or occupants who in their absence intend within a reasonable period to come and reside. We do not believe the phrase “in their absence” implies that the owner/occupant must have previously resided there. It is sufficient that an owner or occupant be planning, within a reasonable period of time, to move to the premises and reside there. We hold that vacant residential rental property to which a new tenant is planning within a reasonable period of time to move and establish a residence is a dwelling within the meaning of the statute.

The State also argued in its brief that if we determine that the premises were not a dwelling we should reduce the defendant’s conviction to burglary under Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)) as his conduct clearly constitutes that offense. Because we have found that Pearson was guilty of residential burglary, we need not address this issue.

Finally, the State argues that should Pearson’s conviction for residential burglary be upheld, we should remand the cause for re-sentencing or impose the minimum term of four years in the penitentiary, because the sentence given by the trial court is unauthorized. The State’s argument is based on section 5 — 5—3(cX2)(G) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3(c)(2)(G)), which prohibits a sentence of probation for residential burglary, and section 5 — 6—2(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—2(b)(1)) of the Code, which provides a maximum term of probation of four years for a Class I felony. The State’s argument is not relevant, however, as Pearson was placed on probation pursuant to section 23 of the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 1111/2, par. 6323) (repealed by the Illinois Alcoholism and other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6351, et seq.)). Probation under the Alcoholism and Substance Abuse Act was an alternative to sentencing under the Unified Code of Corrections of 1963, and the Code’s sentencing limitations did not apply. (People v. Cattaneo (1986), 147 Ill. App. 3d 198, 497 N.E.2d 1363; see also People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49 (holding that treatment under the Dangerous Drug Abuse Act was an alternative to sentencing under the Unified Code of Corrections).) A term of five years’ probation for residential burglary was authorized and proper under the Alcoholism and Substance Abuse Act. We note that while section 21 of the Alcoholism and Substance Abuse Act was amended effective January 1, 1988, to preclude those convicted of residential burglary from being eligible for treatment under the Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6321(g)) (repealed by the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 6351 et seq.)), such prohibition was not in effect when Pearson was sentenced and did not apply.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.