author: PRESIDING JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. BLEITNER, Defendant-Appellant.
    Fourth District
    No. 4—89—0145
    Opinion filed June 27, 1990.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen, Assistant Attorney General, both of Chicago, and Nathan R Maddox, Assistant Attorney General, of Springfield, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Robert C. Bleitner, was charged by indictment in Calhoun County case No. 88—CF—3 with the offense of criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3).) The indictment alleged on March 12, 1988, defendant had sexual intercourse with his 17-year-old stepdaughter, D.F. Defendant pleaded guilty to the offense and was later sentenced to an extended term of 22 years’ imprisonment to run consecutively with a sentence previously imposed in Calhoun County case No. 88—CF—14. Defendant appeals, alleging the trial court committed errors in accepting his plea of guilty and in sentencing. We affirm.

On June 2, 1988, while defendant was released on bond for the offense of criminal sexual assault, defendant was arrested for attempting to place a pipe bomb on the car of Calhoun County State’s Attorney Charles Birch. The motive for this attempt on Birch’s life allegedly stemmed from Birch’s prosecution of defendant for the offense of criminal sexual assault in this case. (See People v. Bleitner (1989), 189 Ill. App. 3d 971, 546 N.E.2d 241.) As a result of the June 2 incident, defendant was indicted and later convicted in case No. 88—CF—14 for 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, par. 8—2(a)), and attempt (first degree murder) (Ill. Rev. Stat. 1987, ch. 38, par. 8—4(a)). On December 7, 1988, defendant was sentenced to concurrent terms of 28 years’ imprisonment for attempt (first degree murder) and 5 years’ imprisonment for unlawful use of weapons.

Immediately following the imposition of sentence on December 7, 1988, the trial court asked whether a jury trial on the sexual assault charge would be held the following week. Counsel for defendant informed the court defendant wished to immediately plead guilty to the criminal sexual assault charge. Defense counsel advised the court defendant’s decision to plead was against his advice. The court admonished defendant of his rights and the possible penalties which could be imposed. In response to the court’s questioning, defendant stated he was not pleading guilty because he was in fact guilty but as a matter of convenience. The State provided a factual basis for the plea, and the court accepted defendant’s plea of guilty after stating defendant had not demonstrated anything to indicate to the court he did not understand the nature of the possible penalties or the waiver of his rights. The court refused defendant’s request to be sentenced on that day.

A sentencing hearing was held on December 14, 1988. The court again admonished defendant concerning possible penalties and asked defendant if he wished to withdraw his guilty plea for any reason. Defendant stated he did not.

D.F. testified at the sentencing hearing stating defendant is her stepfather and on March 12, 1988, she was 17 years old. On this date, she and defendant were together in the family car running errands. Defendant drove and D.F. sat in the passenger’s seat. Defendant told D.F. he had to stop at the river landing. Once at the landing, defendant turned off the ignition, unzipped his pants, and took out his penis. Defendant moved D.F. to the middle of the seat and removed her clothing. Defendant made D.F. touch his penis and massage it for about five minutes. D.F. told defendant she was mad at him and she hated him. Defendant responded she would just have to get mad at him and by her doing this, it might help the relationship between himself and her mother. Defendant then penetrated D.F.’s vagina with his penis. Defendant later withdrew his penis and ejaculated on a towel. Defendant grabbed D.F.’s hand and put it on his penis again. Defendant also entered D.F. for a second time.

After leaving the landing, defendant dropped D.F. off at a friend’s house. D.F. told her friend what had happened. When D.F. returned home later that day, she told her sister and mother what had happened.

Defendant testified on his own behalf at the sentencing hearing stating he never sexually assaulted his stepdaughter. Defendant further stated that in January 1987, D.F. gave birth to a child which defendant made her put up for adoption. D.F. has resented him ever since.

The State requested defendant be sentenced to the maximum extended term of 30 years’ imprisonment. The trial court sentenced defendant to an extended term of 22 years’ imprisonment to run consecutively with the sentence imposed in case No. 88—CF—14.

On January 12, 1989, defendant filed motions to withdraw his guilty plea and to reduce his sentence. In the motion to withdraw the guilty plea, defendant alleged his plea was not voluntary as it resulted from a combination of emotional distress and mental disorders and he had pleaded guilty due to his desire to conclude the proceedings rather than based on his belief he was indeed guilty. The trial court denied both motions. On appeal, defendant alleges the trial court erred in accepting his plea because at the time of pleading guilty he repeatedly claimed his innocence, had just been sentenced to 28 years’ imprisonment, and was mentally ill.

Contrary to defendant’s allegations, the trial court is not precluded from accepting a plea of guilty in spite of a defendant’s claim of innocence if the record reflects a factual basis from which a jury could find the defendant guilty. (People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404.) Moreover, even though the plea had already been accepted, facts disclosed at the sentencing hearing can be considered in determining whether an adequate factual basis for the plea has been established. People v. Warship (1972), 6 Ill. App. 3d 461, 285 N.E.2d 224.

Here, the record shows the State gave a detailed factual basis for the plea which included corroborating forensic tests and physical evidence. Defense counsel agreed the facts recited by the State were substantially correct and could be proved. This factual basis was further corroborated by D.F.’s testimony at the sentencing hearing. Accordingly, the trial court did not err in accepting defendant’s plea despite his claim of innocence.

Second, no error occurred in accepting defendant’s plea of guilty on the same day he had been sentenced to a term of 28 years’ imprisonment in case No. 88—CF—14. The record shows the trial court went to great lengths to protect defendant’s interests and to insure his decision was voluntarily made after an opportunity to reflect and consult with counsel. A lengthy colloquy occurred between the trial court and defendant prior to the acceptance of his plea. The trial court patiently admonished defendant of his rights pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402). The trial court denied defendant’s request for an immediate sentence and suggested defendant use the time between the plea and sentence to consult with counsel and to reconsider his decision. At sentencing a week later, the

trial court again gave defendant lengthy admonitions and provided defendant with an opportunity to withdraw his guilty plea. Under these circumstances, defendant cannot now maintain his plea was tainted by the imposition or “shock” of the sentence in case No. 88—CF—14.

Last, the test of the competency of a defendant is the same whether the defendant is standing trial or pleading guilty. (People v. Heral (1976), 62 Ill. 2d 329, 342 N.E.2d 34.) Both require a defendant must be able (1) to understand the nature and purpose of the proceedings against him and (2) to assist in preparing his defense. (Ill. Rev. Stat. 1987, ch. 38, par. 104—10.) As such findings are made in advance of trial or plea, a trial court must always be alert to circumstances suggesting a change in the defendant. Heral, 62 Ill. 2d at 337, 342 N.E.2d at 38.

On October 13, 1988, a hearing was held to determine defendant’s fitness to stand trial for both the offense of criminal sexual assault in case No. 88—CF—3 and attempt (first degree murder) in case No. 88—CF—14. After the presentation of both expert and lay witness testimony, the trial court found defendant competent to stand trial for both these offenses. We affirmed the trial court’s decision in People v. Bleitner (1989), 189 Ill. App. 3d 971, 546 N.E.2d 241. In doing so, we held the mere fact a psychiatrist expressed the opinion defendant was unfit did not mandate a similar finding by the trial court, as the ultimate issue of fitness is for the trial court, not the experts, to decide. See Bleitner, 189 Ill. App. 3d at 976, 546 N.E.2d at 245.

Here, the trial court evaluated and reaffirmed its fitness decision both prior to accepting defendant’s plea and prior to sentencing. The trial court found nothing had changed to alter its original decision. Particularly, the trial court noted defendant’s response at the sentencing hearing to the State’s question whether defendant was aware of all the evidence the State had against him on this charge. Defendant responded he was aware of what the State said existed even though he did not think it did. Defendant continued by stating all he was doing was beating the State at its own game. The trial court acknowledged for the record defendant has made such statements and actions in a knowing attempt to manipulate the record and in some way to muddy the waters in this case and in case No. 88— CF — 14.

It is clear from the record defendant understood the nature and purpose of the proceedings against him and was able to assist in preparing his defense. After nearly a two-month lapse, the trial court was properly alert to circumstances suggesting change. Finding none, the trial correctly found defendant fit to plead.

Defendant further contends the trial court erred in sentencing. Specifically, defendant alleges the trial court inappropriately considered the crime was committed by force and the trial court mistakenly believed defendant could have been charged and convicted of a Class X felony. However, defendant failed to raise these issues in his motion to withdraw his guilty plea, or in his motion to reduce sentence, which was filed simultaneously. Any issue not raised by the defendant in a motion to withdraw the plea of guilty and vacate the judgment is deemed waived. (107 Ill. 2d R. 604(d).) We review these issues only to determine whether they constitute plain error.

At the hearing on defendant’s motion to withdraw his guilty plea, defense counsel argued if the offense had occurred two months later it would not have even been a crime, as the victim had only been two months shy of her 18th birthday. In refusing defendant’s motion, the trial court recognized defendant had been charged under section 12—13(a)(3) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3)), which states the accused commits criminal sexual assault if he commits the act of sexual penetration with a victim who was under the age of 18 and the accused was a family member. However, the court further recognized the State could have elected to charge the defendant under section 12 — 13(a)(1) of the Code, which states the accused commits criminal sexual assault if he commits an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(1).) The trial court stated the evidence would have supported a conclusion force was used as force does not require threats of physical force or use of a weapon. The trial court recognized defendant was not charged under section 12—13(a)(1) and stated it merely pointed out the possibility of a conviction under section 12—13(a)(1) to refute defense counsel’s argument regarding the victim’s age.

In response to the same argument by defense counsel, the trial court also stated the State could have charged this offense as a Class X felony. It is unclear as to what statute the trial court was referring to as at all other times the trial court correctly referred to this offense as a Class 1 felony. Moreover, the paragraph in which the trial court refers to a Class X felony begins by “[w]ell, it’s really not that important” and ends by stating, “It really was not a factor in the sentencing process in this case, but I wanted to bring that up since you had raised it in your written motion.”

Clearly, the trial court did not consider these factors in sentencing defendant. When taken in context, these statements are merely responses to an erroneous argument raised by defense counsel. Defendant was not prejudiced by these statements nor do they constitute plain error.

Last, defendant alleges his sentence to an extended term of 22 years’ imprisonment for the offense of criminal sexual assault is an abuse of discretion. In support, defendant cites other sexual assault cases where the sentences have been more lenient.

The imposition of a sentence is a matter of judicial discretion, and in the absence of an abuse of discretion, the sentence may not be altered on appeal. The trial judge is normally in a better position to determine the punishment imposed than the court of review. Accordingly, the trial judge’s decision is entitled to great deference and weight. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

There was no abuse of discretion in this case. The trial court correctly found defendant qualified for an extended term pursuant to section 5—8—2 of the Unified Code of Corrections as defendant had been convicted of a felony after having been previously convicted in Illinois for a greater class felony within 10 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8—2.) Moreover, the court correctly found defendant eligible for a consecutive sentence pursuant to section 5—8—4(a) of the Unified Code of Corrections because at the time of sentencing, defendant was already subject to sentence in this State. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(a).) The court denied the State’s request for a maximum sentence of 30 years because of defendant’s lack of prior criminal convictions. The court imposed a sentence of 22 years, citing defendant’s danger to society as evidenced by his convictions for criminal sexual assault and attempt (first degree murder).

The trial court appropriately considered the applicable statutes and circumstances in this case. The cases cited by defendant are not relevant, as they involve substantially different circumstances. Accordingly, the trial court did not abuse its discretion in sentencing defendant.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COMPUTER TEACHING CORPORATION, Plaintiff and Counterdefendant-Appellee, v. COURSEWARE APPLICATIONS, INC., Defendant and Counterplaintiff-Appellant.
    Fourth District
    No. 4—89—0901
    Opinion filed June 27, 1990.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Courseware Applications, Inc., appeals from the trial court order finding it guilty of contempt for failure to comply with discovery orders. We previously affirmed a trial court order in this case finding plaintiff, Computer Teaching Corporation, in contempt for failure to make payments into an escrow account. (Computer Teaching Corp. v. Courseware Applications, Inc. (1989), 191 Ill. App. 3d 203, 547 N.E.2d 718.) We affirm.

Plaintiff and defendant entered into a joint venture for developing and marketing a computer-assisted instruction package. This package was to be derived from plaintiff’s computer language authoring program called the LA-System. The agreement between plaintiff and defendant dated March 17, 1983, provided for plaintiff to disclose to defendant certain proprietary, confidential, and trade secret information relating to the LA-System. Defendant agreed to keep such information confidential and not to use or disclose it except to the extent necessary to carry out the purpose of the joint venture. The agreement acknowledged the information contained in the LA-System was owned solely by plaintiff.

On June 7, 1985, plaintiff and defendant terminated their venture. The termination agreement provided for defendant to assign, sell, and transfer to plaintiff all of its rights, .title, and interest in and to the LA-System. After plaintiff and defendant terminated their venture, defendant released and began marketing a computer language authoring system, referred to as UNISON.

Plaintiff brought suit against defendant alleging defendant had continuous access to its LA-system and had copied portions of it in the UNISON program. Plaintiff’s complaint stated these copied portions included the structure, sequence, and organization of the overall program, the structure, sequence, and organization of program subroutines, command names, command functions, command arrangements, user interface, screen displays, and menus. Plaintiff sought an injunction against defendant from using, disclosing, selling, licensing, distributing, or otherwise transferring copies of UNISON and the recovery of damages.

Plaintiff’s request for discovery sought all documents relating to the design and development of the UNISON program or any forerunner thereof. Defendant refused to comply with this request and, on August 29, 1989, the trial court entered an order enforcing plaintiff’s request for production of documents. Defendant provided a partial response to the order by providing a list of publications utilized in the design and development of the UNISON program. Defendant stated the additional information sought was privileged, proprietary material, and irrelevant to the proceedings. Defendant requested an evidentiary hearing to demonstrate the irrelevancy of the request or, alternatively, requested the court hold it in contempt for failure to comply with the discovery order.

The trial court denied defendant’s request for an evidentiary hearing and found the requested documents relevant for purposes of discovery. The trial court found defendant and its vice-president Thomas Schaefges to be in civil contempt of the court’s discovery order. Defendant and Schaefges were each fined $100. Defendant appeals, alleging discovery should not have been ordered as the trial court could not determine the relevance of the requested documents due to its lack of expertise in the subject matter of the discovery request. Defendant further asserts plaintiff’s discovery request was a fishing expedition into trade secrets.

The supreme court rules authorize broad discovery “regarding any matter relevant to the subject matter involved in the pending action.” (107 Ill. 2d R. 201(b)(1).) Discovery is to be a mechanism for the ascertainment of truth and for the purpose of promoting either a fair settlement or a fair trial. (Pemberton v. Tieman (1983), 117 Ill. App. 3d 502, 453 N.E.2d 802.) Traditionally, the trial court is accorded great latitude in determining the scope of discovery as discovery presupposes a range of relevance and materiality which includes not only what is admissible at trial but also that which leads to what is admissible at trial. (Mistler v. Maneini (1982), 111 Ill. App. 3d 228, 443 N.E.2d 1125.) A reviewing court will not interfere with the trial court’s discovery rulings absent a manifest abuse of discretion. M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.

Here, the trial court ordered production of all documents relating to the design and development of the UNISON program or any forerunner thereof. Such information is clearly relevant to plaintiff’s claim defendant copied portions of the LA-System program in designing and developing the UNISON program. This determination can be readily made from plaintiff’s complaint and does not require the assistance of an evidentiary hearing. Defendant cited the purpose of the requested evidentiary hearing would be to give the court an introductory course in computer science stating, “the court did not have a sufficient basis upon which to determine the relevance of the information sought.” We find to the contrary, and note the rules of discovery do not provide a trial judge must be an expert concerning all substantive issues brought to court in order to determine relevancy for purposes of discovery. The rules of discovery provide for the trial court to supervise the process, and the trial court here properly did so.

Contrary to defendant’s assertion, plaintiff’s discovery request was not a fishing expedition into trade secrets. Plaintiff’s complaint cited the external portions of the UNISON program which were allegedly copied from the LA-System and its rationale for so believing. Here, discovery is necessary to determine whether additional internal elements may also have been copied. Such information is only accessible through discovery and further serves the goals of ascertaining the truth and promoting a fair settlement or trial. Moreover, the fact the requested discovery may contain trade secrets does not exempt it from these rules. (Bee Chemical Co. v. Service Coatings, Inc. (1969), 116 Ill. App. 2d 217, 253 N.E.2d 512.) The supreme court rules provide for protective measures when ordering disclosure of sensitive materials. (107 Ill. 2d R. 201(c)(1).) In this case the trial court appropriately entered a protective order of nondisclosure. While defendant sought an evidentiary hearing, defendant has made no other request for protective measures.

Plaintiff contends defendant waived the objection of relevancy for appeal. We disagree. The record before us indicates these issues were sufficiently raised at the trial court level.

A citation of contempt is an appropriate method for testing the propriety of a discovery order. (Howard v. Forbes (1989), 185 Ill. App. 3d 148, 541 N.E.2d 685.) Defendant requested the trial court hold it in civil contempt to permit appellate review of the question presented. Accordingly, the technical finding of contempt and the $100 fines entered upon that judgment are vacated. In all other respects, the judgment of the trial court is affirmed.

Affirmed in part; vacated in part.

SPITZ and GREEN, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re A.D. et al., Alleged to be Neglected Minors (The People of the State of Illinois, Petitioner-Appellee, v. Anita Deavers, Respondent-Appellant).— In re C.L.D., Alleged to be a Neglected Minor (The People of the State of Illinois, Petitioner-Appellee, v. Anita Deavers, Respondent-Appellant).
    Fourth District
    Nos. 4—89—0976, 4—89—0977 cons.
    Opinion filed June 27, 1990.

      Alan J. Novick, of Jennings, Novick, Ensign & Ostling, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Patrick J. O’Rourke, Assistant Public Defender, of Bloomington, guardian ad litem.

   JUSTICE STEIGMANN

delivered the opinion of the court:

Respondent, Anita Deavers, appeals orders of the trial court which found that her children, C.L.D., A.D., and C.D., ages seven, six, and five, respectively, were neglected minors, and appointed the Department of Children and Family Services (DCFS) as their guardian with authority to place them. The findings of neglect were based upon acts constituting aggravated criminal sexual abuse performed upon C.L.D. by her stepfather, Billy Deavers.

Anita does not claim that error occurred during the adjudicatory hearing. Instead, the sole issue on appeal is whether the trial court erred in finding that Anita, at the time of the dispositional hearing, was either “unwilling or unable” to care for her children, as those terms are used in section 2—27 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 802—27(1)). Section 2—27(1) reads in pertinent part as follows:

“(1) If the court finds that the parents, guardian or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions which have led to such a finding of unfitness or inability to care for, protect, train or discipline the minor, and that it is in the best interest of the minor to take him from the custody of his parents, guardian or custodian, the court may
(a) place him in the custody of a suitable relative or other person;
(b) place him under the guardianship of a probation officer;
(c) commit him to an agency for care or placement, except an institution under the authority of the Department of Corrections or of the Department of Children and Family Services;
(d) commit him to the Department of Children and Family Services for care and service.” Ill. Rev. Stat. 1987, ch. 37, par. 802-27(1).

At the dispositional hearing, Donna Turner, a social worker who was working with Anita, recommended that the court return the minors to Anita as long as Billy was ordered to stay away from them. Turner stated that Anita was willing to learn, was doing well in parenting classes, and was seeking sex abuse counseling. According to Turner, Anita no longer denied that the sex abuse occurred.

Tracy Wolf, a DCFS investigator, testified that Anita attended parenting classes, counseling, visitation, and meetings with DCFS. Anita also had sought assistance from a Women’s Counseling Center. Anita was not then employed, and Billy provided her only means of support. Wolf permitted Billy to visit A.D. and C.D., but was against returning all three minors to Anita, even if a protective order was entered regarding Billy.

Anita testified that she was currently employed as a housekeeper at a motel and was earning $3.65 per hour. She had nine years of schooling, but had not earned her GED. Anita testified that in her past, she had been both physically and sexually abused and stated she was attempting to come to terms with these incidents. Anita requested that the court return her children to her and stated that she would abide by an order of protective supervision.

The trial court granted guardianship of all three children to DCFS. Although the court determined that Anita had made commendable progress in the last two months preceding the dispositional hearing, the court concluded that she had more to learn about being a good parent. The trial court also entered orders of protection for (1) Anita to continue her parenting, classes, (2) Billy to cooperate with DCFS in order to resolve his problems regarding sex abuse of children, and (3) Billy to have no contact with C.L.D. or to visit A.D. or C.D. without supervision.

The trial court’s order was correct in formally adjudicating these children wards of the court and appointing DCFS as their guardian with authority to place them outside their home. When, as here, a child has been subjected to sexual abuse at the hands of a resident of that child’s home, the court ought to remove that child (and any siblings similarly found to be neglected or abused) from that home and return them only when the court is confident that the risk of sexual abuse has been eliminated. The children involved are entitled to no less, and we emphasize that only the courts of this State, through proceedings under the Act, can protect such children from their abusive or neglectful parents.

We note with concern the following excerpts from the summary of the report prepared by Tracy Wolf of DCFS for the dispositional hearing:

“Family reunification that guarantees the safety of these children is not possible at this time due to the lack of sufficient progress. Both Mr. & Mrs. Deavers continue to either deny the sexual abuse or to minimize the extent of the sexual abuse.
The recent separation of Mr. & Mrs. Deavers does not immediately produce a safe environment for the children. The Deavers have had a pattern of separations and reunifications. There is no plan for divorce or alternatively, for them to jointly address the sexual abuse issues. Both Mr. & Mrs. Deavers need to successfully complete a course of treatment prior to return of the children to either one of them or to both of them.
Mrs. Deavers has begun counseling but has significant issues to resolve before she will be capable of protecting the children, i.e., her denial that sexual abuse has occurred and also, that Mr. Deavers has perpetrated the sexual abuse; her role in the perpetration of the sexual abuse, including her dependency/passivity; her own trauma that occurred to her as a child; her acceptance of violent/abusive behavior as ‘normal’. Should the children be returned to her at this time, with her lack of belief that Mr. Deavers has sexually abused them, the children would not have a sense of physical and emotional protection and security; they would not be likely to report to her any incidences of sexual abuse. Additionally, we do not believe that Mrs. Deavers has made sufficient progress in treatment to assure that she would be capable of complying with court orders that she not allow Mr. Deavers access to the children.” (Emphasis in original.)

On this record, we find it entirely appropriate for the trial court to return these children to Anita only when she convinces the trial court that one of two things has occurred: (1) Billy is no longer a part of her life, or (2) Billy has taken and successfully completed affirmative steps to address his perverse behavior, with the result that he is no longer dangerous to the children.

If Billy fails to take such affirmative steps for his sex abuse problem, Anita will have to choose whether she wants to include Billy in her life or whether she wants custody of her children. Given the overriding importance in proceedings under the Act of the children’s safety and best interests, we have no hesitancy in approving the trial court’s action putting Anita to this test.

We hold that a parent in the position of Anita who, at the time of the dispositional hearing, has not clearly and unequivocally chosen, to the trial court’s satisfaction, the safety of her children over a continued relationship with their abuser, whether husband, boyfriend, or whatever, is “unwilling or unable,” within the meaning of section 2 — 27(1) of the Act to care for or protect her children, and it is in their best interest that they be removed from their parent’s custody until such time, if ever, that the court is so satisfied.

Although there is no evidence which indicates that either A.D. or C.D. was abused by Billy, the fact of C.L.D.’s abuse is enough to sustain the trial court’s conclusion that these two children needed to be removed from Anita’s home. (In re Brooks (1978), 63 Ill. App. 3d 328, 339, 379 N.E.2d 872, 881.) The court need not wait until A.D. and C.D. also become the victims of sexual abuse. Brooks, 63 Ill. App. 3d at 339, 379 N.E.2d at 881.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM E. COLLINS, Defendant-Appellant.
    Fourth District
    No. 4—89—0734
    Opinion filed June 27, 1990.

      Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a bench trial based upon a stipulation of facts, videotape, and audiotape, defendant was convicted of one count of possession with intent to deliver cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)) and one count of possession with intent to deliver cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 705(c)). Subsequently, the trial court sentenced defendant to concurrent terms of four years’ incarceration for the cocaine conviction and one year’s incarceration for the cannabis conviction.

Defendant appeals, arguing the evidence was insufficient to rebut his entrapment defense, he was denied effective assistance of counsel, and the trial court abused its discretion in sentencing.

We affirm.

Defendant is a former guard at the Logan Correctional Center (Center). In early September 1987, an inmate at the Center telephoned Special Agent Erlenbush of the Illinois State Police, Division of Internal Investigation. The inmate had information concerning a guard who had been smuggling drugs into the Center. On September 9, 1987, Erlenbush gave the inmate a telephone number to give to the correctional guard. On September 11, 1987, the inmate gave defendant a piece of paper with the telephone number, dates, and times defendant could call if he wished to make money. On September 12, 1987, at approximately 10:45 a.m., defendant called Special Agent Dan Reed (“Dennis”) and told Reed he wanted to make some extra money. Reed told defendant he was bringing in some “pot” and “coke,” although he did not specify the quantity. After Reed asked how much defendant charged for taking the contraband into the prison, defendant told him $150. The men arranged a meeting.

On September 15, 1987, Reed and Special Agent Brenda Taylor observed defendant enter the K mart parking lot in Springfield. Defendant exited the vehicle he was in and approached the officers’ vehicle. After he entered the officers’ vehicle, Taylor gave defendant two heat-sealed packages containing cocaine and cannabis. She also gave defendant $150. Defendant placed the currency in his pocket and placed the drugs in his sock. During the conversation, defendant told the agents there was no problem getting the drugs into the prison, as he was a guard. Defendant stated he could take in anything “Dennis” wanted and smuggling was easier in the winter because he wore bulky clothing. Defendant told Reed to call him when Reed wanted to send more drugs.

Subsequently, the police arrested defendant. In a statement to the police, defendant stated he did not intend to take the drugs into the prison. He was going to give them to someone else to be sold on the street. Therefore, he could keep the $150 and be paid by the person who would eventually sell the drugs on the street. Defendant stated he saw this as an easy way to make money. This was the first time he had ever agreed to take drugs into the prison. An inmate had repeatedly pressured him to bring narcotics into the facility. He had resisted for a while but then agreed.

During the trial, defense counsel stated defendant was not stipulating to the fact that defendant was the guard suspected of smuggling narcotics by the inmate.

The trial court viewed a videotape and listened to an audiotape of the exchange which occurred on September 15, 1987. Neither of these tapes is a part of the record on appeal. However, the record does contain a transcript of the audiotape. During the conversation, defendant stated it was easy to smuggle in the cool weather. Additionally, he was involved in athletics, which made it easier to get in. Defendant indicated it took a long time to “hook up” because he had gotten into trouble, was skeptical about the contact, but found out the contact was legitimate. Defendant offered to transport as much contraband as Dennis wanted to bring into the prison. Defendant said he would let the contact call Dennis and have the contact tell defendant when Dennis was ready for defendant to contact him.

The trial judge found the State had presented sufficient evidence to rebut defendant’s entrapment defense. She considered (1) all of the circumstances of the transaction, including the conversation prior to and during the exchange; (2) that defendant set the price; (3) that defendant quickly contacted the police officer to set up the exchange; and (4) from viewing the tapes, defendant appeared to be bragging about his ability to bring narcotics into the prison.

At sentencing, the court stated probation would deprecate the seriousness of the offense, this type of offense could cause serious harm, defendant was in a position of trust, and defendant had no prior criminal convictions. The court sentenced defendant to the minimum sentence of imprisonment on both convictions.

We note defendant alleges his counsel was ineffective. However, defendant does not argue this issue and has not cited any authorities in support of his statement. Failure to argue a proposition and refer to relevant authorities constitutes a waiver of the issue. (People v. Porter (1986), 111 Ill. 2d 386, 489 N.E.2d 1329; 107 Ill. 2d R 341(e)(7).) We will not address this contention.

Defendant next argues the State failed to prove beyond a reasonable doubt that he was not predisposed to commit the instant offenses. Section 7—12 of the Criminal Code of 1961 states:

“Entrapment. A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” Ill. Rev. Stat. 1987, ch. 38, par. 7—12.

Once a defendant has presented some evidence in support of this defense, the State must prove that defendant was not entrapped. (People v. Chanath (1989), 184 Ill. App. 3d 521, 540 N.E.2d 468.) Entrapment is established when the criminal design originates with government officials, they implant in the mind of an innocent person the disposition to commit the offense, and induce its commission in order to prosecute. (Sorrells v. United States (1932), 287 U.S. 435, 442, 77 L. Ed. 413, 417, 53 S. Ct. 210, 212-13; People v. Gaytan (1989), 186 Ill. App. 3d 919, 542 N.E.2d 1163; People v. Gresham (1981), 96 Ill. App. 3d 581, 421 N.E.2d 1053; Ill. Rev. Stat. 1987, ch. 38, par. 7—12.) Where a defendant already has an intent to commit a crime, and does so merely because an officer affords him an opportunity to commit the crime or purposely aids and encourages him in its perpetration, there is no entrapment. (Gaytan, 186 Ill. App. 3d 919, 542 N.E.2d 1163.) A defendaht’s predisposition to commit a crime is one of the crucial elements of the entrapment defense. People v. Schillaci (1988), 171 Ill. App. 3d 510, 526 N.E.2d 871.

Here, the only disputed factor is whether the trial court erred in finding defendant was predisposed to commit the offense. Whether a defendant was predisposed to commit the offense is a fact question. (Schillaci, 171 Ill. App. 3d 510, 526 N.E.2d 871; People v. Norks (1985), 137 Ill. App. 3d 1078, 484 N.E.2d 1261.) Among the factors courts have considered in determining predisposition include: (1) the defendant’s initial reluctance or ready agreement to commit the offense; (2) whether defendant has engaged in a course of conduct involving similar offenses; (3) defendant’s familiarity with drugs; and (4) his willingness to accommodate the needs of others involved in the transaction. Schillaci, 171 Ill. App. 3d 510, 526 N.E.2d 871; People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438.

Here, the stipulated facts indicate defendant reluctantly acceded to the inmate’s repeated suggestion he call Dennis. However, during the conversation on September 15, 1987, defendant indicated his initial reluctance was due to his suspicion of the inmate. After defendant resolved this suspicion, he promptly contacted Dennis. Defendant also offered to transport additional contraband into the facility. He boasted of his ability to engage in smuggling. These statements indicate defendant was predisposed to commit the offense.

The finding of predisposition is strengthened if we accept defendant’s stated intent. The State did not charge defendant with unauthorized bringing of contraband into a penal institution. (Ill. Rev. Stat. 1987, ch. 38, par. 31A—1.1.) Defendant’s statements indicate he intended to take the drugs and sell them to another person. The government’s actions were focused upon preventing the smuggling of contraband into a penal institution. Thus, defendant’s statements support a finding that he was predisposed to commit the offense charged. Defendant’s intent, if his statements are believed, was to perpetrate a fraud upon the drug dealers and profit twice from his possession and sale of the drugs. Thus, defendant participated in the transaction for his own criminal purpose.

Defendant next argues the trial court abused its discretion by not sentencing him to probation. Defendant notes he is attending college, employed, and is a first offender. Defendant contends he is a good candidate for probation. Defendant urges this court to reduce his sentence. A sentence will be reduced by a reviewing court only if the trial court abused its discretion and the sentence constitutes a substantial departure from the law. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) When the sentence imposed is within the limits established by the legislature, it will not be modified because the reviewing court would have balanced sentencing factors differently. People v. Jorgensen (1989), 182 Ill. App. 3d 335, 538 N.E.2d 758; People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211, cert. denied (1988), 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233.

In the instant case, the trial court considered mitigating and aggravating factors. The trial judge noted probation would deprecate the seriousness of the offenses. The judge sentenced defendant to concurrent terms of four years on the cocaine conviction and one year’s incarceration on the cannabis conviction. These were the minimum periods of incarceration authorized by the statutory framework. (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(b), 705(c); Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—1(a)(4), (a)(7).) No abuse of discretion occurred.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
      In re MARRIAGE OF RANDOLPH B. WILEY, Petitioner-Appellant, and AMBER L. WILEY, Respondent-Appellee.
    Fourth District
    No. 4—89—0819
    Opinion filed June 27, 1990.

      Norman J. Fombelle and Kent A. Rathbun, both of Burger, Fombelle, Zachry & Rathbun, P.C., of Decatur, for appellant.

      Frederick P. Erickson, of Erickson, Davis & Murphy, Ltd., of Decatur, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The petitioner, Randolph Wiley, appeals the judgment of dissolution, challenging (1) the award of joint custody insofar as it places primary physical custody with respondent Amber Wiley; and (2) the method the court used in awarding the marital residence to the respondent and his pension rights to him. We affirm.

Petitioner and respondent were married in 1978. Their children, C.T. and C.G., were born fraternal twins on April 17, 1988. Petitioner first challenges the custody award of the court by asserting the respondent has been guilty of negligence in her care of the twins.

Petitioner testified respondent allowed the babies to play with an allegedly dangerous music box, which respondent denied. Petitioner also testified he walked into the house and discovered the babies on the floor of one room while the respondent was in another room, brushing her hair, allegedly after taking a shower. On another occasion, petitioner discovered one of the children unattended in a child’s bathtub in the sink, and he contends the child could have drowned; respondent contended she had gone to another room temporarily to get some of the children’s clothes.

Petitioner’s mother testified the respondent walked the children in a stroller on a hot day with the sun shining on them and a dog leashed to the stroller. She also testified to an incident at the doctor’s office when one twin walked into another room while the respondent tied the other twin’s shoe. The petitioner and his mother were also present in the doctor’s office but did not prevent this from happening. She also testified respondent frequently would walk several feet away from the changing table while changing the baby in order to get something from another table and then return to the changing table. Much is made by the petitioner of respondent’s admission she once allowed a baby to roll off the counter, catching him before he reached the floor. There were no witnesses to this incident, and respondent contends she was close enough to the counter so the baby rolled into her arms and never fell below the countertop.

The most serious allegations involve two occasions, admitted by the respondent, when she left the children in the playpen locked in the house while she went to the store for 15 minutes on one occasion, and to the post office for five minutes on the other. The respondent contended she ran to the store and back, an eight-block trip, while the petitioner produced a witness who saw respondent walking, and to whom respondent showed the keys of the house and said the children were locked in the house.

On November 15, 1988, petitioner requested and received an order of protection enjoining the respondent from beating, striking, threatening, or interfering with the personal liberty of the children, although it is undisputed respondent never physically abused the children in the ways described in the order. Also on this date, petitioner filed for temporary custody, which was later granted. On August 31, 1989, petitioner filed for and was granted another order of protection against the respondent.

Testimony from the petitioner’s sister and baby-sitter portray the respondent as a passive, distracted, out-of-touch, nervous individual. Neither of these witnesses testified respondent was physically or verbally abusive or violent. Instead, testimony from these witnesses indicated respondent was a kind person who loved her children. Ron Little, counselor at the Caring Center, testified on behalf of petitioner. He had five sessions with both petitioner and respondent, and six later sessions with only the respondent. He found respondent to have a passive personality, but found both parties stable enough to be parents. A test given to both petitioner and respondent indicated petitioner had normal results while respondent tried to answer questions so as to make a more favorable impression on the tester. Little testified petitioner was a critical and demanding person; Little was concerned this would transfer to petitioner’s behavior toward the children. In Little’s assessment, respondent would provide the best warmth and caring for the children, and the previously described incidents were bad judgment, not a sign of instability.

Petitioner testified about an incident involving one child having runny stools, for which he saw no need to see a doctor. When respondent took the child to the doctor during a visitation, she obtained medicine for diarrhea. The petitioner alleges respondent gave both children the medicine, as indicated by (1) the large amount of medicine allegedly missing from the bottle, and (2) the other child’s alleged constipation following the incident. The petitioner also testified to respondent taking one of the children to get an ear examination during another visitation, at which time the doctor mislabeled the medicine, putting the wrong twin’s name on the bottle. He also testified on one occasion the respondent, while carrying a baby to the car in a car seat, placed the baby and the seat on the ground to chase their dog.

Respondent presented the following testimony. Her friends, Theresa Click and her husband Roy, a Decatur policeman, testified while it may have been a mistake to leave the children in the house unattended, this was a mistake in judgment and a result of inexperience. They further testified respondent was a loving parent, close to the children, and they trust their own daughter to respondent’s care. Respondent’s sister testified respondent had a close relationship with her children, showed them love and patience, and spent much time and energy with them in a variety of activities. The client service director for a support group testified respondent had taken eight months of her parenting-skills class and is a sound and competent person and a good parent. A counselor for another parenting class attended by the respondent testified respondent is a very caring person and the proper person for custody. Respondent’s mother testified respondent gives the children excellent care, they love her very much, and they do not want to be out of her sight at any time.

During the hearing, testimony indicated verbal and physical abuse between the parents. Petitioner initially testified respondent was abusive and threatening at various times, starting all the fights. Petitioner later testified respondent started only half the fights. With the exception of an openhanded slap on the arm witnessed by respondent’s mother, there was no other evidence of any abusive behavior by the respondent. Rather, all the evidence indicated she was a passive, gentle, kind, and calm person. On the other hand, testimony from respondent’s witnesses and from petitioner himself corroborated much of respondent’s testimony regarding petitioner’s physical and verbal abusiveness toward her. For example, petitioner complained about an incident wherein respondent continued to rock and read to one of the babies who was fussing prior to bedtime. In petitioner’s opinion, the baby simply had to be put to bed and left alone. Petitioner admitted that after about 45 minutes he “rapped” respondent on the head while she had the baby in her arms; he then took the baby from her, and placed him in bed, at which time the child went immediately to sleep.

Respondent’s mother testified she noticed bruises on the respondent. She also testified to petitioner’s admission he had hit respondent three times while she was pregnant. Respondent contended, and petitioner denied, petitioner physically threw her out of the house on each of two previous separations; and, once he found out about the most recent temporary custody decision, he put some of her clothes in a cardboard box, refusing to let her take any luggage, and ordered her out of the house within the hour.

Respondent testified petitioner was constantly critical of her. It is uncontradicted petitioner actively discouraged her from sending any greeting cards, or from seeing her family or friends while he was home. Petitioner controlled her spending of money, telling her how much to spend and what to buy, and checking receipts after she returned from shopping. Respondent testified petitioner would hold a pillow over her face to scare her into having sex; petitioner denied holding the pillow down on respondent’s face, but admitted holding it over her face. Respondent also testified petitioner would send her to the basement when he thought she did something wrong.

Petitioner’s abusive nature was further testified to by Officer Stenger of the Mount Zion police force, who was called to the house on several occasions. Once, petitioner called the police when respondent attempted to take the children for a visitation. Petitioner contended respondent’s car seats were too small, but refused to allow respondent to use his car seats. On this occasion, the officer testified petitioner’s attitude was abusive, and petitioner called him “Officer Bubba.” Petitioner contended he called the officer this because the officer refused to identify himself by name; the officer testified he was wearing his name badge at the time. The officer also testified petitioner constantly interrupted his interview with the respondent, while the respondent was calm at all times and did not interrupt.

The second call to the police involved the incident previously referred to when the doctor mislabeled the prescription. This time, petitioner yelled at the police officer when he thought the officer had ordered him to give the medicine to the child. The policeman testified he merely suggested the prescription was probably fine, since the doctor had only examined one of the children and the prescription was obviously meant for the child examined, though the other child’s name appeared on the label. The officer also testified petitioner wanted him to arrest both his wife and the doctor who wrote the prescription. When the policeman told him he did not think there was sufficient probable cause for arrest of respondent, petitioner told him it was not up to him to think. Respondent’s mother, present during this incident, contends petitioner accused both her and her daughter of attempting to poison the children.

In the judgment of dissolution, the court recognized respondent was primary caretaker of the twins after they were first born, but she left the children unattended on two occasions without giving the court a reasonable explanation for this conduct. The court rejected testimony that the children were in any reasonable apprehension of harm when, for example, respondent bathed them and, on such occasions, the respondent was away from them for only a brief period of time and distance. The court found credible respondent’s testimony about petitioner striking, kicking, criticizing, and cursing her frequently; about petitioner controlling who she could speak to and how she spent her money; of petitioner sending her to the basement when he thought she did something wrong; and ridiculing her body and intelligence. The court found the petitioner was essentially a dictator in their home, and this behavior could be exhibited toward the children in the future. Therefore, based on the best interests of the children, the court awarded joint custody, but gave the primary physical custody to the respondent subject to reasonable visitation.

“[T]he trial court’s determination of custody will not be reversed unless there has been a clear abuse of discretion or the decision was contrary to the manifest weight of the evidence.” (Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 1099-1100, 425 N.E.2d 1251, 1259.) The trial court has broad discretion in matters of custody. (Roth v. Roth (1977), 52 Ill. App. 3d 220, 225, 367 N.E.2d 442, 447.) “The primary and paramount consideration in a child custody case is the best interest and welfare of the child.” (In re Marriage of Benevento (1983), 118 Ill. App. 3d 16, 19, 454 N.E.2d 766, 768.) The relevant factors for such a determination are listed in the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 602).

In this case, the court heard the testimony of alleged negligent behavior by the respondent, and testimony on petitioner’s verbal and physical abuse of respondent. Respondent’s testimony on petitioner’s abusive behavior was consistent with testimony of two impartial witnesses, Little and Officer Stenger. Witnesses from both sides attested to respondent’s passive nature, but acknowledged she was a kind, loving, and patient person toward her children. Two witnesses testified they trusted respondent with their daughter.

There was testimony as to respondent successfully attending parenting classes, one of which lasted up to eight months. Petitioner’s attorney, in argument, contended that by attending not only one but two parenting classes, “she paraded her children” for the benefit of the court. Petitioner presented no evidence such activities were anything more than an attempt to overcome her acknowledged weaknesses as a parent out of consideration for the well-being of her children.

There is also no evidence of physical abuse of the children while in the care and custody of the mother, making this case distinguishable from In re Marriage of Cotton (1984), 103 Ill. 2d 346, 469 N.E.2d 1077, relied on by the petitioner. Petitioner contends the baby-sitter’s assessment of the babies’ passive behavior toward the respondent is evidence of the children’s preference for their father. This assessment ignores the witnesses who testified on how well the children and respondent relate to each other. The trial court had the best opportunity to observe the witnesses and the parties, and to assess their temperaments and personalities. Benevento, 118 Ill. App. 3d 16, 454 N.E.2d 766.

The petitioner contends his alleged conduct toward his former wife should not be considered in the custody determination since (1) there is no evidence of direct abuse of the children, and (2) “the court is not to consider conduct of a present or proposed custodian that does not affect his relationship with the child.” (In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 647, 420 N.E.2d 555, 563.) The Rizzo court also stated such conduct was a relevant area of inquiry if shown to affect the relationship with the children. (Rizzo, 95 Ill. App. 3d at 641, 420 N.E.2d at 559.) Rizzo is distinguishable on its facts, as it concerned a custodial parent’s involvement with drugs and alcohol, while this case involves petitioner’s verbal and physical abuse of the respondent.

By statute, the court may consider the physical violence or threat of such, by the child’s potential custodian, whether directed against the child or another person. (Ill. Rev. Stat. 1987, ch. 40, par. 602(a)(6).) The statutory provision has been amended to eliminate the phrase “but witnessed by the child.” (Ill. Rev. Stat. 1985, ch. 40, par. 602(a)(6).) In In re Custody of Williams (1982), 104 Ill. App. 3d 16, 432 N.E.2d 375, the court held such violence or threat thereof may be considered as a relevant factor in determining the best interests of the child, and “the best interests of the child may necessitate removing the child from [such a] potentially harmful environment irrespective of the child’s state of knowledge.” Williams, 104 Ill. App. 3d at 19, 432 N.E.2d at 377.

Further, in In re A.D.R. (1989), 186 Ill. App. 3d 386, 542 N.E.2d 487, this court upheld a finding of neglect which was the result of physical abuse of the mother by the father, rather than of abuse of the minor. This court held, “it is not unreasonable for a trial judge to conclude continuing physical abuse by one parent to another will cause emotional damage to a child and thus constitute neglect.” (A.D.R., 186 Ill. App. 3d at 393, 542 N.E.2d at 492.) Consistent with these authorities, we conclude allegations of petitioner’s abusive conduct were relevant and could properly be a decisive factor in the court’s determination as to the best interest of the children. No error.

Petitioner next contends the trial court abused its discretion in the method used to effect the property distribution, i.e., the marital residence and pension. He argues the trial court erred by employing the “immediate offset” or “total offset” approach rather than the “reserved-jurisdiction” approach, and that the court should instead have apportioned the value of the residence and the pension. Petitioner arrives at this conclusion by comparing the value of the items, the house at $35,000 and the pension at $31,000 or $32,000. Since the values are so close, the petitioner assumes the marital residence was awarded to the respondent as an offset for the pension plan award to petitioner. Respondent argued below for the use of the offset approach and, on appeal, agrees the court used this approach but argues it was not an abuse of discretion on the facts.

“[A]n equitable division of marital property is not necessarily an equal one ***.” (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 261, 507 N.E.2d 71, 75.) The trial court has broad discretion under the Act, and its decision regarding apportionment of marital property will not be disturbed unless against the manifest weight of the evidence or an abuse of discretion. (In re Marriage of Swigers (1988), 176 Ill. App. 3d 795, 800-01, 531 N.E.2d 858, 861.) In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1086, 412 N.E.2d 1336, 1343, for example, held the trial court was justified in awarding a larger portion of the marital property to the ex-wife, following the criteria set out in section 503 of the Act. In Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465, the trial court was held to have acted within its discretion by awarding almost all the property to the ex-wife, where the ex-husband’s nonmarital assets were greater and his opportunity to acquire income was better than his ex-wife. Atkinson, 87 Ill. 2d at 180, 429 N.E.2d at 468.

Similarly, the choice of the method of apportioning the present value of the marital property interest in retirement benefits remains within the discretion of the trial court. (In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 757, 475 N.E.2d 1333, 1336.) Under the total-offset approach, the trial court may, upon its determination of the present value of the pension benefits, award the benefits to the employee spouse and offset this amount with other marital property of similar value. Under the reserved-jurisdiction approach, the court orders the employee spouse to pay an allocated portion of the pension fund to the former spouse as it is disbursed, while retaining jurisdiction to énforce the decree. (Robinson v. Robinson (1986), 146 Ill. App. 3d 474, 476, 497 N.E.2d 140, 142.) This court discussed the distinctions between these approaches in In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 748, 534 N.E.2d 1014, 1016-17. (See also In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 717, 437 N.E.2d 1300, 1305; see also Ill. Ann. Stat., ch. 40, par. 503, Supp. to Historical and Practice Notes, at 67-68 (Smith-Hurd Supp. 1989).) Variations in ages of the parties, amounts of property, both marital and nonmarital, duration of the marriage, health, types of pension, amount of benefits to be received, and other circumstances encountered in dissolution proceedings make it impractical to hold that the disposition of pension entitlement in a dissolution proceeding under section 503 of the Act must always be limited to one approach or the other. Korper, 131 Ill. App. 3d at 760, 475 N.E.2d at 1338; Ill. Ann. Stat., ch. 40, par. 503, Supp. to Historical and Practice Notes, at 68 (Smith-Hurd Supp. 1989).

Here, the trial court commented before closing argument that it realized custody was the main issue, but asked for input on property also. Petitioner asked for custody and that he be awarded the marital residence. Respondent presented a more detailed argument on property distribution, including reference to the pension, and suggested the house be awarded to her as custodian of the children, with the value of the house offset against petitioner’s pension. Petitioner’s rebuttal argument made no reference to this particular point.

Although no expert testimony or actuarial evidence was presented, the present value of the pension was listed in petitioner’s financial affidavit as $31,000, petitioner testified it accurately stated his financial standing at the time of the hearing. The trial court was confronted with a situation involving parties with disparate incomes and earning potential. Petitioner worked throughout the marriage while respondent was a homemaker. Both are in their thirties.

The circuit court is to consider the custodial provisions made for any children in dividing marital property, and the desirability of awarding the marital residence, or the right to live therein for reasonable periods, to the spouse having custody of the children. Ill. Rev. Stat. 1987, ch. 40, pars. 503(d)(8), (d)(4); see, e.g., In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 209, 443 N.E.2d 1089, 1097.

Further, as stated in the historical and practice notes on section 503:

“It is well established that the court should seek to achieve a high degree of finality in the allocation and division of property so that the parties can plan their futures with reasonable certainty and will not be encouraged repeatedly to return to the courts. [Citation.] While easy to articulate, this goal is sometimes difficult to achieve. The allocation of readily divisible assets such as cash, securities, or household goods usually presents little difficulty; however, the division of business interests, the family home, and contingent interests, such as pension plans, often requires greater balancing of important interests.” (Ill. Ann. Stat., ch. 40, par. 503, Supp. to Historical and Practice Notes, at 64-65 (Smith-Hurd Supp. 1989).)

In this case, the respondent, awarded primary physical custody of the children, was also awarded the marital residence and temporary rehabilitative maintenance. Petitioner points out that in Wisniewski, this court stated, “This [offset] method is best only where the pensioner is close to mandatory retirement age or retirement is otherwise imminent, and there are sufficient other marital assets to allow an offset to the nonpensioner spouse.” (Emphasis added.) (Wisniewski, 107 Ill. App. 3d at 717, 437 N.E.2d at 1305.) We conclude this statement in Wisniewski does not create a bright-line test that removes the choice of approach on pension distribution from the discretion of the trial court. Here, petitioner does not contest the equity of the overall property distribution, but only the method the trial court used to reach it. Given the circumstances of the parties and the record before us, we cannot say the trial court abused its discretion.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY L. EASLEY, Defendant-Appellant.
    Fourth District
    No. 4—89—0652
    Opinion filed June 27, 1990.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On May 16, 1989, defendant Jimmy L. Easley pleaded guilty in the circuit court of Morgan County to a charge of criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3).) On May 16, 1989, that court sentenced defendant to a term of eight years’ imprisonment. The court then admonished defendant that “if [he wished] to appeal to a higher court [his] conviction and the sentence,” he must, within the next 30 days, file a motion to withdraw the guilty plea in the circuit court. The court also admonished the defendant that, if the motion was denied, he could appeal within 30 days of the denial and would be limited on appeal to the grounds set forth in his motion. On June 20, 1989, more than 30 days after entry of the sentence, the circuit clerk of Morgan County received and file stamped defendant’s pro se motion for a reduction of sentence and other documents not pertinent here.

On June 20, 1989, the circuit court entered an order striking defendant’s motion for reduction, ruling it was untimely because it was not filed within 30 days of the sentencing. On July 3, 1989, the circuit court received a letter from defendant indicating he had an excuse for not filing his motion for sentence reduction, which he called an “appeal,” earlier. The court took this document as a motion to reconsider its striking of the motion for sentence reduction. The court heard that matter on August 1, 1989, and entered an order denying the motion on that date.

On August 21, 1989, defendant filed the notice of appeal which brings the matter before this court. On appeal, defendant raises questions as to both the propriety of the dismissal of his motion for sentence reduction and for errors claimed to have occurred at sentencing. Defendant’s request has a dual aspect. If the court merely erred in not granting a hearing on the motion to reduce sentence, the defendant would only be entitled to a hearing in regard to whether the court would reduce the sentence. This decision would be one for which the court would have wide discretion. If sufficient error occurred at sentencing, though, defendant would be entitled to a new sentencing hearing. For reasons which we will explain, we vacate the order dismissing the motion to reduce the sentence and remand to the circuit court with certain directions.

We consider first the ruling of the court in regard to defendant's motion to reduce sentence. Prior to the decision in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the practice existed when attacking a sentence imposed after a plea of guilty of making a motion to withdraw the plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d 604(d)), even though the defendant did not seek to have the conviction entered on the plea set aside. The decision in Wilk made clear no motion to withdraw such a plea is required and, at the most, only a timely motion directed against the sentence is required. (Compare People v. Kennedy (1989), 188 Ill. App. 3d 1, 543 N.E.2d 617; People v. Carroll (1990), 195 Ill. App. 3d 445, 552 N.E.2d 361.) If defendant’s motion to reduce his sentence was timely here, he did not waive error arising from his sentencing.

The record shows defendant’s motion attacking his sentence was dated and sworn to on June 14, 1989. A proof of service verified by defendant states defendant deposited the motion in the United States mail at the correctional center where he was incarcerated on June 14, 1989. No envelope purporting to have contained the motion is incorporated in the record, but a Department of Corrections mailing voucher indicates defendant signed the voucher on June 15, 1989, directing that an unspecified amount be charged to his account for “legal mailing” which was required to go out. Accompanying the voucher was a verified letter from defendant to the trial judge stating that on June 15, 1989, defendant put an envelope containing the motion in a mailbag provided for his unit but that mail did not go out until June 19, 1989.

This court recently decided People v. Pagel (1990), 197 Ill. App. 3d 305, which is analogous to the instant case. In Pagel, a verification and proof of service indicated the defendant there had deposited a copy of his motion to withdraw his guilty plea in the United States mail on the 30th day after sentencing, but the envelope containing his motion was postmarked one day later. This court concluded the proof of service date controlled and that defendant’s motion was timely filed. Here, the record clearly shows defendant filed his motion for reduction of sentence pursuant to the court’s admonishment he needed to file a motion within 30 days to perfect his right to appeal.

Here, the proof of service date falls within the 30-day period. However, here, unlike in Pagel, defendant’s own admission in his letter to the judge shows the motion was not placed in any mail system until June 15, 1989, and the motion was not actually mailed until June 19, 1989. However, under the circumstances, the record indicates defendant had no control over what happened to the motion after it was placed in the prison mail system on June 15, 1989, the 30th day after sentencing. Due process requires that a prisoner who places a motion in the prison mail system should be placed in the same position as one who places a document in United States mail. Under Pa-gel, which was decided after the decision of the circuit court here, defendant’s motion for reduction of sentence was timely.

Another procedural problem confronts us even after deciding the motion for reduction of sentence was timely. More than 30 days elapsed after the ruling on June 20, 1989, striking the motion for reduction of sentence and the filing of notice of appeal on August 21, 1989. Section 5—8—1(c) of the Unified Code of Corrections (Code) provides for the filing of a notice to reduce sentence if filed within 30 days of the sentence, but also states that, if such a timely motion is filed, “a final judgment shall not be considered to have been entered” until the motion has been ruled upon. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(c).) Supreme Court Rule 606(b) provides that, except in death cases and as provided in Supreme Court Rule 604(d), notices of appeal must be filed within 30 days “after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” 107 Ill. 2d R. 606(b).

The entry of the sentence here clearly created a final judgment, and the motion to reduce the sentence was clearly a motion directed against that final judgment within the meaning of Supreme Court Rule 606(b). Under both Rule 606(b) and section 5—8—1(c) of the Code, the 30-day period for filing notice of appeal did not start to run until the ruling on the motion to reduce sentence. Defendant’s apparent theory is that the filing of the motion to reconsider the striking of the motion to reduce sentence further tolled the running of the 30-day period of Rule 606(b) until that motion was ruled upon. In civil cases, motions to reconsider motions directed against final judgments do not serve to toll the time for filing notice of appeal under Supreme Court Rule 303(a)(2) (107 Ill. 2d R. 303(a)(2)). (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.) In People v. Scruggs (1987), 161 Ill. App. 3d 468, 514 N.E.2d 807, the Second District Appellate Court held the same rule is applicable to criminal cases. We are unaware of any provision authorizing such successive post-judgment motions. We agree with the second district decision in Scruggs.

The 30-day period of Supreme Court Rule 606(b) expired 30 days after the striking of defendant’s motion to reduce sentence. Normally, this would require us to dismiss the appeal. However, Supreme Court Rule 606(c) (107 Ill. 2d R. 606(c)) sets forth a provision whereby, under certain circumstances, where a defendant fails to timely file notice of appeal within the 30-day period, leave to permit late notice of appeal may be permitted upon request filed within six months of the end of the 30-day period.

In People v. Williams (1974), 59 Ill. 2d 243, 320 N.E.2d 13, and People v. Brown (1973), 54 Ill. 2d 25, 294 N.E.2d 267, a defendant had not been advised of when a notice of appeal should be filed and intent to appeal had been shown within the six-month period. Under those circumstances, delayed appeals were permitted after the 30-day period even though no request for leave to file a late notice of appeal had been filed. In Williams, the late notice of appeal was filed more than eight months after the sentence. In Brown, the notice of appeal was filed 16 days after the expiration of the 30-day period. In both cases, the cases had been briefed and argued in the appellate court before they were dismissed for tardy filing of notice of appeal, with the supreme court reversing both dismissals.

As we have indicated, the record makes clear defendant intended all along to appeal his sentence. The motion to reduce defendant’s sentence was summarily stricken. Then, upon receiving a letter from defendant, the court, extending every effort to defendant to be fair, treated the letter as a motion to reconsider the sentence. In the process, defendant was likely lulled into believing he did not have to file notice of appeal until the motion to reconsider was ruled upon. The court, when giving defendant Rule 604(d) admonitions, had told defendant that after a ruling was made on a motion to withdraw his plea, he had 30 days to appeal. However, the defendant received no admonishment as to when he needed to file notice of appeal when the court summarily dismissed defendant’s motion to reduce sentence.

Under the unusual circumstances of this case and by analogy to Williams and Brown, we hold the notice of appeal here to be timely. As we have indicated, by analogy to Pagel, we have held the motion to reduce sentence was timely and should have been heard. If we should rule on the merits of that portion of defendant’s appeal directed toward the propriety of the sentencing hearing and send the case back for a hearing on the reduction motion, defendant would be entitled to another appeal if dissatisfied with our ruling. Accordingly, we choose not to decide those additional issues now and deem it best to obtain a ruling on the reduction motion before proceeding further with this appeal.

Accordingly, we vacate the circuit court order striking the motion to reduce sentence. We remand the case to the circuit court of Morgan County for the sole purpose of holding a hearing to rule on that pending motion. We direct the court to hear that matter as soon as reasonably possible and to certify its ruling to us.

Order vacated; cause remanded in part with directions.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE McNAMARA

text:
    YOUNG AMERICA REALTY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Richard Logston, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—89—0751WC
    Opinion filed June 26, 1990.

      Costigan & Wollrab, P.C., of Bloomington (Guy C. Fraker, of counsel), for appellant.
    Law Offices of Mike McElvain, and Robert Williams, Ltd., both of Bloomington (Mike McElvain, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Richard Logston, sought worker’s compensation benefits (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) for accidental injuries he alleged arose out of and in the course of his employment with respondent, Young America Realty. Respondent disputed the existence of an employer-employee relationship between it and claimant. The arbitrator found that claimant was respondent’s employee and awarded medical expenses and temporary total disability benefits in the sum of $240 per week for 166/v weeks. The findings and award of the arbitrator were affirmed by the Industrial Commission (Commission). The circuit court of McLean County confirmed the decision of the Commission. Respondent appeals.

The sole issue on appeal is whether claimant, a carpenter, was an independent contractor rather than an employee of respondent for purposes of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.).

The facts are undisputed. Respondent is in the business of managing apartment buildings for passive investors, and additionally, operates a real estate sales business. As part of its business, respondent leases properties, collects rents, and does routine maintenance work and some remodeling. Respondent ordinarily employs five individuals. Each of these individuals is on a salary and receives fringe benefits, including paid vacations. Respondent’s employee foreman is Byron Stoller, who oversees routine maintenance.

In February 1988, respondent managed a property located at 107 West Locust Street in Normal, Illinois. The owner of the property wanted a new roof added to the building on the property. Respondent sought bids for the job, but the bids were too high, and respondent elected to hire someone to do the job.

Claimant, a carpenter and aluminum siding worker, heard there might be roofing work available with respondent. On February 14, 1988, he went to the property. Work had already commenced on the roofing project when claimant arrived. Stoller was on the roof working when claimant arrived at the jobsite. Claimant spoke with Stoller and informed him that he knew how to cut rafters and how to design and build the desired roof.

Stoller engaged claimant to complete the project. He cleared-his hiring of claimant with respondent’s owner. Claimant was to be paid $8 per hour for his work. Stoller stated, however, that he did not discuss hourly wages with claimant, nor did he discuss whether respondent would withhold taxes from claimant’s pay, whether there was to be a written contract, or whether this project was to be the only work claimant was to do for respondent.

Claimant began work on February 14. Stoller told claimant what kind of roof the owner of the property wanted and what the pitch of the roof was to be. Claimant then made the various cutting determinations. Respondent provided all materials, tools, and equipment, except for claimant’s hammer and carpenter’s pouch. Stoller was on the job at all times that claimant worked. Stoller told claimant when to report to work and when to quit for the day.

On February 18, claimant was working on tacking the edges to the roof. Stoller testified that he told claimant that they would have to put on the edge from ladders off the ground. Following this comment, claimant informed Stoller that he had ladders and scaffolding on his truck. Up to then, respondent had provided ladders, but those ladders were not big enough. Claimant had ladders which were big enough. Claimant stated that he always carried the ladders on his truck.

Claimant set up a scaffold using his own ladders and scaffolding board. He stated, however, that setting up a scaffold is not part of a carpenter’s job, and that anybody could set up a scaffold. While claimant was working on the scaffold, it collapsed and he fell approximately 10 feet, injuring his left hip. The injury resulted in a temporary disability.

On appeal, respondent contends that the Commission’s determination that claimant was an employee rather than an independent contractor was against the manifest weight of the evidence. Respondent bases this contention on the following: respondent did not in fact control claimant’s method and manner of operation; respondent was not in the business of roof construction; respondent did not withhold taxes or social security from claimant’s check; respondent did not provide claimant with any fringe benefits; respondent did not supply the scaffolding from which claimant fell; and respondent did not indicate to claimant that he would.be retained for future work.

There is no inflexible rule for determining whether an individual is an employee or an independent contractor. (See Wenholdt v. Industrial Comm’n (1983), 95 Ill. 2d 76, 447 N.E.2d 404; Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903; Earley v. Industrial Comm’n (1990), 197 Ill. App. 3d 309; Area Transportation Co. v. Industrial Comm’n (1984), 123 Ill. App. 3d 1096, 465 N.E.2d 533.) When elements of both the relationship of employee and of independent contractor are present and the facts permit an inference either way, the Commission alone is empowered to draw the inferences, and its decision as to the weight of the evidence will not be disturbed on review. Greenberg v. Industrial Comm’n (1961), 23 Ill. 2d 106, 178 N.E.2d 646; Earley v. Industrial Comm’n, 197 Ill. App. 3d 309.

The determination of whether a claimant is an independent contractor or an employee is crucial for it is the initial decision of the employment status of a claimant which determines whether he is entitled to compensation benefits. (Alexander v. Industrial Comm’n (1978), 72 Ill. 2d 444, 381 N.E.2d 669; Earley v. Industrial Comm’n, 197 Ill. App. 3d 309.) Some of the factors which must be considered in making this determination include the following: the right to control the manner in which the work is done; the method of payment; the right to discharge; the skill required in the work to be done; who provides tools, materials, or equipment; whether the workman’s occupation is related to that of the alleged employer; and whether the alleged employer deducted for withholding tax. (Wenholdt v. Industrial Comm’n, 95 Ill. 2d 76, 447 N.E.2d 404; Lister v. Industrial Comm’n (1986), 149 Ill. App. 3d 286, 500 N.E.2d 134.) The right to control the manner in which the work is done is the most important factor in determining the relationship. (Globe Cab Co. v. Industrial Comm’n (1981), 86 Ill. 2d 354, 427 N.E.2d 48; Area Transportation Co. v. Industrial Comm’n, 123 Ill. App. 3d 1096, 465 N.E.2d 533; Yellow Cab Co. v. Industrial Comm’n (1984), 124 Ill. App. 3d 644, 464 N.E.2d 1079.) Nonetheless, in determining whether an individual is an independent contractor or an employee, no one factor is determinative. Wenholdt v. Industrial Comm’n, 95 Ill. 2d 76, 447 N.E.2d 404.

We find that there is ample evidence to support the Commission’s finding that claimant was respondent’s employee. At the time claimant was engaged to complete the roofing project, respondent already had begun work on that project. Respondent directed the style of construction and controlled claimant’s work hours. Moreover, respondent at all times supervised the project. In fact, on the day claimant was injured, respondent’s foreman was working with claimant on the roof. Stoller suggested that the day’s tasks should be completed by using a ladder and affixing the roofing edge from the bottom. Following this suggestion, claimant volunteered the use of his ladder and scaffolding equipment. At all times prior to this incident, claimant used respondent’s equipment, materials and tools, the sole exceptions being claimant’s own hammer and carpenter’s pouch.

In view of this evidence, we conclude that respondent exerted a significant degree of control over the means by which claimant accomplished his work. (See Lister v. Industrial Comm’n, 149 Ill. App. 3d 286, 500 N.E.2d 134.) Although claimant controlled the detail of the project, the record amply supports the conclusion that respondent more than merely hired claimant to complete the project. Rather, respondent directly oversaw the project on a daily basis.

We recognize that there were other factors which were indicative of an independent contractor relationship. For example, respondent did not deduct for withholding tax or for social security. The failure to withhold, however, is not decisive. (See Kirkwood Brothers Construction v. Industrial Comm’n (1978), 72 Ill. 2d 454, 381 N.E.2d 697; Penny Cab Co. v. Industrial Comm’n (1975), 60 Ill. 2d 217, 326 N.E.2d 393.) Similarly, respondent’s failure to provide fringe benefits and its failure to indicate whether claimant would be engaged for future projects are not decisive. The Commission was entitled to accord these factors little weight in view of the other factors presented. That is, when reasonable inferences from the facts may be drawn either in favor of or against an employment relationship, the award of the Commission must be upheld. (Greenberg v. Industrial Comm’n, 23 Ill. 2d 106, 178 N.E.2d 646.) In our view, the factors which respondent cites as supportive of a finding that claimant was an independent contractor are not sufficient to compel this court to rule contrary to the Commission. The Commission had ample evidence to support its conclusion that claimant was an employee at the time of his accident. We will not disturb that conclusion.

For the foregoing reasons, the judgment of the circuit court of McLean County is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.