author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANE JAMES, Defendant (James A. James, Defendant-Appellant).
    First District (5th Division)
    No. 1—90—1817
    Opinion filed May 8, 1992.
    Rehearing denied September 10, 1992.

      Alan D. Goldberg, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant James A. James and codefendant Diane James (defendant’s wife) were charged by indictment with two counts of controlled substance offenses. After their trial began, the court held a plea bargaining conference pursuant to which (1) defendant pled guilty to possession of over 15 grams of a controlled substance with intent to deliver and (2) codefendant pled guilty to possession of less than 15 grams of a controlled substance. The trial court, after admonishing both defendants, sentenced defendant to six years’ imprisonment and codefendant to 18 months’ probation. Defendant then filed in the trial court a written motion to vacate his guilty plea but did not file a certificate as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The trial court, after a full hearing, denied the motion and defendant appealed. We consider the following issues: (1) whether defendant is entitled to a new hearing on his motion to vacate his guilty plea where defense counsel failed to file a certificate as required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)); (2) whether defendant is entitled to the vacation of his guilty plea in light of the trial court’s incomplete admonishments pursuant to Supreme Court Rule 402(a)(2) (134 Ill. 2d R. 402(a)(2)); (3) whether defendant is entitled to the vacation of his guilty plea in light of the factual basis of the plea pursuant to Supreme Court Rule 402(c) (134 Ill. 2d R. 402(c)); and (4) whether defendant is entitled to a new trial where his trial counsel allegedly acted under a conflict of interest.

Relevant to our disposition are the following facts as disclosed by the record. James A. James (defendant) and his wife, Diane James (codefendant), were charged by indictment with one count of possession of more than 15 grams of heroin with intent to deliver and with a second count of possession of more than 15 grams of heroin. The two were tried together and were represented by the same private attorney, Robert Novelle (Novelle).

Before trial, both defendant and codefendant waived their right to a jury trial. Both pled not guilty. Neither objected to the joint representation by Novelle.

At trial, the State called two police officers. John Backshis, an officer with the Northeastern Metropolitan Enforcement Group, testified to all of the following. After an informant made a “controlled buy” from codefendant, a search warrant was issued in her name. On April 26, 1988, Backshis and fellow officers went to 3645 South 53rd Street in Chicago to execute the warrant. Defendant and code-fendant were seated on couches in the living room when the officers arrived. The officers recovered from codefendant’s pocket a tin film case containing 17 balloons; one of the balloons contained a quantity of a brown, rock-like substance. Under the cushion where codefendant was seated the officers recovered two larger balloons and $1,178 in cash. Under a cushion where defendant was seated the officers recovered a loaded gun and a box of shells. About 56 small balloons containing brown powder were found in a sugar bowl in the kitchen.

The officers recovered a utility bill and cable television bill both of which listed codefendant’s name and the same address on the search warrant. The officers recovered a 1987 Internal Revenue Service form and an Illinois unemployment insurance waiver form both of which listed defendant’s name and the same address on the search warrant. At the time of his arrest, defendant stated to the officers that his address was the same address listed in the search warrant.

On cross-examination, Novelle questioned Backshis at length about the following facts pertaining to defendant: defendant’s name was not on the search warrant; no drugs were found on the person of defendant; the utility and cable bills for the residence, both representing several months of service charges, listed codefendant’s name and did not list defendant’s name; and the officers ran a “leads check” the night before the search which indicated that defendant had a different address.

The State also called Officer Gary Gerdzunas of the Cicero police department. Gerdzunas’ testimony recounted the items recovered in the search. Novelle did not cross-examine Gerdzunas. The proceedings were then continued to a future date to allow the State to call a police chemist.

The following month, on December 19, 1989, the parties appeared before the court and Novelle immediately requested a conference with the court. Novelle informed the court that defendant would withdraw his previously entered plea of not guilty and enter a plea of guilty to the indictment. Novelle further informed the court that codefendant would withdraw her previously entered plea of not guilty and, pursuant to an amendment of the indictment, enter a plea of guilty only as to possession of less than 15 grams of a controlled substance. In exchange for the guilty pleas, the State recommended a sentence of six years’ imprisonment for defendant and 18 months’ probation for codefendant.

The court asked each defendant if he or she was under the influence of drugs or alcohol and each answered “no.” The court asked if each understood the plea agreement and each answered “yes.” The court then admonished defendant and codefendant. The court specifically admonished defendant with the following: the nature of the charge against him; the charge was a Class X felony with a minimum sentence of six years and a maximum sentence of 30 years; that by pleading guilty defendant was giving up certain constitutional rights; and that the court was not required to accept the guilty plea. The record does not show, however, that the court admonished defendant that a Class X felony requires a mandatory supervised release term of three years in addition to a prison sentence.

The court then questioned defendant if anybody had threatened him or promised him anything in order to induce him to plead guilty. Defendant answered “no.” At this point, Novelle stipulated to venue, jurisdiction, and the sufficiency of the charges. The court, however, specifically requested that the assistant State’s Attorney provide an offer of proof to support the factual basis for the pleas. Novelle then stipulated to the testimony of Officer Backshis and to the test results of the police chemist which had determined that the balloons recovered in codefendant’s pocket contained 7.4 grams of heroin, the two larger balloons found under her cushion contained 1.7 grams of heroin and the balloons found in the sugar bowl contained 7.8 grams of heroin. The court asked each defendant if he or she wished to make a statement and each answered “no.” The court then accepted the guilty pleas and entered the recommended sentences. Finally, the court explained to each defendant his or her right to appeal; each defendant also read and signed an acknowledgment form pursuant to Supreme Court Rule 605(b) (134 Ill. 2d R. 605(b)).

Subsequently, the defendant called a hearing and requested the trial court to appoint a public defender for the purpose of filing a motion to vacate his guilty plea. We note that during this hearing, the assistant State’s Attorney made the following comment concerning the plea bargaining: “[Wjherein part and parcel of the agreement was that the defendant James James was taking six years in the Illinois Department of Corrections; and the codefend-ant, I believe it was a package deal, she received eighteen months felony probation; and the State reduced the case in light of a long series of conferences in the middle of a bench trial.” At any rate, the court granted defendant’s request and appointed a public defender, Adam Stillo.

Stillo filed a written motion to vacate defendant’s guilty plea. Stillo did not, however, file a certificate pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The written motion alleged that “there was not a factual basis for the plea” and that “the plea was not freely and voluntarily made.” Stillo filed a written supplemental motion which added the allegation that defendant’s trial attorney, Novelle, acted under a conflict of interest. Defendant also filed his own affidavit in support of the motion. Paragraphs four and five of the affidavit stated:

“4. There was a conflict of interest in Mr. Novelle representing me, as Mr. Novelle told my wife, the codefendant, that I was going to be found not guilty, but she would be found guilty. However, in order to keep my wife from going to jail, I would need to plead guilty to the charges.
5. I pled guilty solely to keep my wife, the codefendant, from going to jail and not because I am truly guilty.”

On May 8, 1990, the court convened for a hearing on defendant’s motion to vacate his guilty plea. Defendant offered testimony which was limited to the veracity of his affidavit; no other witnesses, including Novelle, were called to testify. The attorneys then argued the motion. Stillo argued that there was an insufficient factual basis to hold defendant guilty of “more than a class one amount”; that there was no connection between defendant and the residence; and that Novelle had acted under a per se conflict of interest. The assistant State’s Attorney responded that defendant at least had constructive possession of more than 15 grams of heroin; that defendant voluntarily pled guilty to the Class X felony; and that the forms recovered during the search provided the connection between defendant and the residence. Also, the assistant State’s Attorney questioned whether the whole proceeding had been “the ultimate game playing by defendants.” The assistant State’s Attorney suggested that defendant believed he could vacate his guilty plea and the State would not reinstate the charges against his wife. We note that during rebuttal, Stillo characterized the conflict of interest: “It has to do with the fact that these two defendants changed their mind, and the conflict arose. That is the very bottom line.”

The court denied the motion, finding that there was a sufficient factual basis for defendant’s guilty plea; that Novelle did not act under a conflict of interest; and that defendant voluntarily and intelligently pled guilty. Defendant filed this appeal.

Opinion

We first address whether Stillo’s failure to file a Rule 604(d) certificate requires that we remand this cause for a new hearing on defendant’s motion to vacate his guilty plea. Rule 604(d) provides that no appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant files a written motion within 30 days of the date on which the sentence is imposed. The rule also provides:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and the report of the proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 134 Ill. 2d R. 604(d).

The supreme court in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, addressed the standard for applying Rule 604(d). Although the specific issue in Wilk concerned the failure to file a written motion under Rule 604(d) and not the failure to file a certificate, the court unequivocally stated: “At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” (Wilk, 124 Ill. 2d at 103, 529 N.E.2d at 221.) The court went on to explain the elaborate history and purpose of the rules concerning guilty pleas. The court held that Rule 604(d) requires strict compliance, not merely substantial compliance; furthermore, strict compliance with the rule is a condition precedent to an appeal. Therefore, the court upheld the dismissal of the appeals by the defendants who failed to strictly comply with the rule. The court was careful to point out that its holding did not leave the defendants without a remedy for their counsel’s failure to strictly comply with the rule. The appropriate remedy, the court stated, lies in our Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.) through a claim for ineffective assistance of counsel.

Applying Wilk to the instant case, we hold that Stillo’s failure to file the certificate as required by Rule 604(d) fell short of the necessary strict compliance. Therefore, defendant failed to establish the condition precedent to appealing the motion to vacate his guilty plea and defendant must pursue his remedy by claiming ineffective assistance of counsel in his post-conviction proceedings.

We recognize that our holding conflicts with other appellate court opinions issued subsequent to Wilk. In People v. Gabala (1st Dist. 1991), 211 Ill. App. 3d 351, 570 N.E.2d 377, the court held that substantial compliance with Rule 604(d) is adequate under certain circumstances. We believe that this holding is contrary to the clear import of Wilk. Also, in People v. Vickery (3d Dist. 1991), 207 Ill. App. 3d 574, 566 N.E.2d 495, and People v. Hayes (5th Dist. 1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, although the courts held that Rule 604(d) required strict compliance, the defendants were granted new hearings at the trial level due to their counsel’s failure to file the certificate. We believe that these holdings are contrary to the supreme court’s determination that a defendant’s “appropriate remedy” lies in the Post-Conviction Hearing Act.

We next address defendant’s claims under paragraphs (a) and (c) of Supreme Court Rule 402 (134 Ill. 2d R. 402). Before we address each paragraph, however, we note that Rule 402 begins with the following language: “In hearings on pleas of guilty, there must be substantial compliance with the following: ***.” (134 Ill. 2d R. 402.) The express language of Rule 402, therefore, requires a different standard of compliance than Rule 604(d).

Defendant claims that his guilty plea should be vacated because the trial court violated paragraph (a) of Rule 402, which provides:

“(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.” (134 Ill. 2d R. 402(a).)

Specifically, defendant claims that he was not correctly admonished under paragraph (a)(2) because the trial court did not inform him that he would receive a mandatory supervised release term of three years in addition to the agreed upon six years’ imprisonment.

The supreme court, however, has held that substantial compliance with Rule 402(a) exists even when a defendant is not admonished of a mandatory parole period where the following circumstances exist: the defendant understood what the recommended sentence would be in light of his guilty plea; defendant knew that the court was not bound to accept the recommendation and the defendant knew that the court could sentence defendant according to the minimum and maximum sentences; and the sentence imposed along with the undisclosed mandatory parole period was less than the maximum to which defendant knew he could be sentenced. (People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E.2d 696.) Here, the record clearly shows that defendant understood that the assistant State’s Attorney would recommend a sentence of six years in light of his guilty plea; defendant knew that the court was not bound by the recommendation and defendant knew that the court could sentence him according to the minimum and maximum sentences; and the six-year sentence actually imposed along with the undisclosed three-year mandatory parole period was substantially less than the maximum sentence defendant could have received. Therefore, in light of this substantial compliance, defendant is not entitled to the vacation of his guilty plea pursuant to Rule 402(a)(2).

Defendant next claims that his guilty plea should be vacated pursuant to the factual basis requirement of Rule 402(c), which provides:

“(c) Determining Factual Basis for Plea. The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.” (134 Ill. 2d R. 402(c).)

Specifically, defendant argues that there was insufficient proof connecting him to the premises in which the heroin was found and that there was insufficient evidence that he possessed more than 15 grams of heroin.

It is well settled that the measure of proof necessary to establish a factual basis for a plea is less than that required to sustain a conviction after a trial. (People v. Royark (1991), 215 Ill. App. 3d 255, 574 N.E.2d 1211.) The requirement that the court determine the factual basis for the plea is satisfied if there is a basis anywhere in the record from which the court could reasonably reach the conclusion that the defendant actually committed the acts with the intent required to constitute the offense to which the defendant is pleading guilty. People v. Banks (1991), 213 Ill. App. 3d 205, 571 N.E.2d 935.

Here, although a computer "leads check” indicated that defendant had a different address, there was a sufficient basis from which the court could reasonably conclude that defendant resided at that address: the police recovered an Internal Revenue Service form and an Illinois unemployment waiver form during the search both of which listed the defendant’s name and the address which was searched; and defendant himself told the officers at the time of his arrest that he resided at the premises with the codefendant.

We also believe that there was a sufficient basis in the record for the trial court to reasonably conclude that defendant constructively possessed more than 15 grams of heroin. The law on constructive possession provides:

“Constructive possession exists without actual personal present dominion over the controlled substance but with an intent and capability to maintain control and dominion over it. [Citation.] As a result, narcotics being found on the premises under the control of defendant gives rise to an inference of knowledge and possession by him which alone may be sufficient to sustain a conviction for unlawful possession of controlled substances. [Citations.] Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession. [Citation.] Moreover, exclusive possession does not mean that possession may not be joint. [Citations.] If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession.” (People v. Scott (1987), 152 Ill. App. 3d 868, 871, 505 N.E.2d 42, 44-45.)

Here, the search produced 7.8 grams of heroin from a sugar bowl in the kitchen, 1.7 grams of heroin beneath a seat cushion on which codefendant had been sitting, and 7.4 grams from a tin in codefend-ant’s pocket. The presence of 16.9 grams of heroin on the premises under the joint control of defendant and codefendant gives rise to an inference of knowledge and possession sufficient to sustain a conviction for unlawful possession of more than 15 grams of heroin. We also believe there was sufficient evidence to establish defendant’s intent to deliver.

Before we close our discussion of the issues under Rule 402, we note that defendant failed to specifically raise these issues in his motion to vacate the guilty plea. Supreme Court Rule 605 provides that in any appeal taken from a judgment on a plea of guilty, any issue or claim of error not raised in the motion is deemed waived. (134 Ill. 2d R. 605(b)(6).) Defendant thereby waived these issues. Also, we note that defense counsel stipulated to the sufficiency of the evidence during the guilty plea conference with the court.

We next address whether defense counsel (Novelle) acted under a conflict of interest by virtue of his dual representation of defendant and codefendant. It is well settled that in cases involving joint representation of codefendants, there is no per se conflict of interest; defendants must show that an actual conflict of interest manifested itself at trial. People v. Bradford (1990), 198 Ill. App. 3d 717, 556 N.E.2d 289.

Defendant’s brief argues, in part, that an actual conflict of interest existed because “independent counsel would not have suggested to a defendant whom he believed would be found not guilty that he plead guilty in order to keep another defendant from going to prison.” In light of our discussion of constructive possession of narcotics, we find no basis for the proposition that defendant would have been found not guilty. Furthermore, even if we were to accept that defendant was less culpable than codefendant, “[a] conflict of interest is not established where a single attorney represents one codefendant who is allegedly more culpable than another codefendant.” People v. Sanders (1991), 209 Ill. App. 3d 366, 375, 568 N.E.2d 200, 206, citing People v. Jovicevic (1978), 63 Ill. App. 3d 106, 379 N.E.2d 665.

Defendant’s brief also argues that an actual conflict of interest existed because the “package deal” arranged by defense counsel “affected the voluntary nature of the guilty plea.” We disagree. In Politte v. United States (7th Cir. 1988), 852 F.2d 924, the court held that a guilty plea is not inherently coercive merely because the government linked the defendant’s plea with an arrangement of leniency for his wife. (Accord Bontkowski v. United States (7th Cir. 1988), 850 F.2d 306.) We are persuaded that this reasoning applies here.

In sum, we have considered the totality of the circumstances of the proceedings below and can find no evidence that defense counsel acted under an actual conflict of interest. Nor can we find evidence that defendant was coerced in any way to plead guilty. In fact, defense counsel stated that the conflict arose because “the two defendants changed their minds.” We conclude, as did the court in Politte, that the disposition of defendant’s case was the proper result of “calculated bargaining.” Politte, 852 F.2d at 929.

For the reasons stated above, we affirm the judgment of the circuit court. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed.

MURRAY and GORDON, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE VILLAGE OF WORTH, Plaintiff-Appellant, v. GERALD WATSON et al., d/b/a Watson Towing and Garage Service, Defendants-Appellees.
    First District (3rd Division)
    No. 1—90—3095
    Opinion filed June 10, 1992.
    Rehearing denied December 4, 1992.

      James E. Gierach, of Gierach, Schuessler & Walsh, Ltd., of Oak Lawn, for appellant.

      William Fitzpatrick, of Callahan, Fitzpatrick, Lakoma & McGlynn, of Oak Lawn, for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Village of Worth, a municipal corporation, appeals from the entry of summary judgment in favor of defendants, Gerald Watson and Marilyn Watson, d/b/a Watson Towing and Garage Service, in a municipal ordinance violation case. Plaintiff argues that: (1) the trial court erred in granting summary judgment in favor of defendants and by denying plaintiff’s motion for summary judgment; (2) the trial court erred in denying plaintiff’s motion for preliminary injunctive relief and in denying plaintiff leave to file a second amended complaint; and (3) the trial court erred in allowing defendants leave to withdraw an affirmative defense without prejudice. We reverse in part, affirm in part, and remand the cause.

Plaintiff filed a first amended verified complaint alleging the following. Defendants were in the business of towing, storing, and servicing motor vehicles at their principal place of business located at 11015 South Harlem Avenue, Worth, Illinois, in a B2 zone (general business district). The following violations of plaintiff’s zoning ordinances existed: (1) defendants allowed trucks in excess of lVz-ton capacity to park on their property (Worth, Ill., Zoning Ordinance §§VII.D.l.e., VII.D.2.(26) (1964)); (2) defendants failed to properly surface the parking area (Worth, Ill., Zoning Ordinance §IX.F.8.b. (1964)); and (3) defendants allowed the storing of junk or nonoperating automobiles or trucks on their property (Worth, Ill., Zoning Ordinance §IV.G.2.b. (1964)). The complaint sought fines and injunctions requiring defendants to correct the violations.

Plaintiff filed a motion for summary judgment in which it argued that: (1) the company towed, repaired, and stored vehicles; (2) in Gerald Watson’s application for a business license, he wrote the words “towing, garage and storage”; (3) 80% of the vehicles Gerald Watson repaired were trucks of over D/z-ton capacity; (4) trucks of over lVz-ton capacity had been parked on the property overnight and as long as one month; (5) one tractor trailer of over lVz-ton capacity had been parked on the property for over three months; (6) two or three loader machines had been stored outside in the parking area for approximately six months awaiting repair; (7) several times there were so many trucks of over lVz-ton capacity to be repaired that Gerald Watson had to find alternative parking for them off the lot; (8) the property was located within 150 feet of a residence district boundary line and was adjacent to residential areas on three sides; and (9) the parking area on the property was not blacktopped, but was made of stone, gravel, and clay, and had been in that condition from the time of purchase.

Defendants argued the following in support of their motion for summary judgment and in opposition to plaintiff’s motion for summary judgment. Defendants operated a public garage, which was a permitted use under the ordinance. Defendants did what an operator of a public garage was authorized to do: equip, repair, service, hire, sell, and store motor vehicles, including semi-trailer trucks. Trucks of over l½-ton capacity were parked on defendants’ property in furtherance of the principal use of the property for a public garage, as opposed to an accessory use. There was a genuine issue of fact whether gravel and crushed stone surfacing was smooth and durable within the meaning of the ordinance. The ordinance’s term “junk” was void for vagueness. In the alternative, there were genuine issues of fact as to what constituted junk and storing.

Defendants filed the affidavit of Gerald Watson in support of their motion for summary judgment and in opposition to plaintiff’s motion for summary judgment. He swore to the following: (1) the business was a public garage and was to repair, service, hire, sell, and store motor vehicles including trucks, truck trailers, and semi-trailers; (2) he had been engaged in the business at that location for approximately 26 years and prior to the enactment of plaintiff’s zoning ordinance on December 15, 1964; (3) he did not operate the businesses of parking lot or storage garage; (4) he had been issued business licenses by plaintiff until 1987, when plaintiff claimed violation of zoning ordinances; (5) all areas surrounding the building were surfaced with a smooth and durable gravel and had been so surfaced for more than 26 years; (6) he repaired trucks and other motor vehicles and, while awaiting parts, parked them in the areas surrounding the house; (7) all vehicles on the premises were either waiting to be repaired, being repaired, or waiting to be picked up after repairs; (8) occasionally, there had been truck parts, tires, and other motor vehicle parts on the premises as a necessary part of the business; and (9) occasionally, there were nonoperating automobiles and trucks on the premises as a necessary part of the business, but he did not store them.

Plaintiff filed an emergency petition for a preliminary injunction on May 25, 1990. It argued that as of May 2, 1990, the condition of the property had deteriorated and that during the week of May 7, 1990, various building materials and spiral staircases were moved onto the property from property belonging to Robert Stewart, who was the defendant in a separate municipal ordinance violation case concerning the moved materials. The trial court refused to grant the relief on the basis that there was no emergency.

On or about June 8, 1990, plaintiff filed a motion for leave to file a second amended verified complaint adding counts III and IV alleging additional ordinance violations related to the property’s condition. Count III was based on the same property conditions alleged in counts I and II, but also alleged that if defendants’ parking and storage of trucks were principal uses of the property, then defendants violated the ordinance section that required all business to be conducted within completely enclosed buildings. (Worth, Ill., Zoning Ordinance §VII.D.l.c. (1964).) Count III also made the new allegation that defendants, by parking trucks in off-street parking spaces that were open to the sky and in the front and side yards, violated off-street parking ordinances that: (1) limited off-street parking to parking of passenger automobiles of patrons, occupants, or employees; (2) permitted off-street parking to be located in a rear yard; and (3) required that front and side yards not be less than 25 feet. (Worth, Ill., Zoning Ordinance §VII.D.l.c. (1964).) Count IV addressed the removal of building materials from the Stewart property and their placement on defendants’ property. The storage of this material allegedly violated another zoning ordinance that prohibited the open storage of building material in yards except during active construction for permissible uses. (Worth, Ill., Zoning Ordinance §IV.G.2.a. (1964).) The materials had been ordered removed from the premises of Robert Stewart on May 11,1990.

On June 8, 1990, the trial court granted defendants’ motion for summary judgment. It found that: (1) defendants’ business was a permitted use; (2) the paving ordinance did not apply to defendants because it applied only to buildings erected after the ordinance’s effective date of December 15, 1964; (3) the phrase “storing of junk” was so vague as to violate the due process clause; and (4) the ordinance prohibiting the storing of nonoperating automobiles or trucks was not applicable to a public garage. On the same date, the trial court granted plaintiff’s motion to strike the defense of laches, granted defendants’ motion to withdraw the defense of equitable estoppel without prejudice, and denied plaintiff’s motion to file a second amended complaint.

Photographs of defendants’ property that were shown to the trial court during the hearing and additional photographs that were sworn to accurately portray the property on May 25, 1990, were put into the record with leave of court.

The following phrases, which are relevant to the appeal, are defined by the zoning ordinance:

“ACCESSORY BUILDING OR USE-one which: (a) is subordinate to and serves a principal building or principal use; (b) is subordinate in area, extent, or purpose to the principal building or principal use served; (c) contributes to the comfort, convenience, or necessity of occupants of the principal building or principal use served; and (d) is located on the same zoning lot as the principal building or principal use served; and with the single exception of such accessory off-street parking facilities as are permitted to locate elsewhere than on the same lot with the building or use served.” (Worth, Ill., Zoning Ordinance §III.B.l. (1964).)
“GARAGE, PUBLIC—any building or premises, other than a private or a storage garage, where motor vehicles are equipped, repaired, serviced, hired, sold or stored.” (Worth, Ill., Zoning Ordinance §III.B.68. (1964).)
“MOTOR VEHICLE—a passenger vehicle, truck, truck-trailer, trailer, or semi-trailer propelled or drawn by mechanical power.” (Worth, Ill., Zoning Ordinance §III.B.103. (1964).)
“USE, ACCESSORY-a subordinate use which is clearly and customarily incidental to the principal use of a building or premises and which is located on the same lot as the principal building or use, except for such accessory parking facilities as are specifically authorized to be located elsewhere.” (Worth, Ill., Zoning Ordinance §III.B.160. (1964).)
“USE, PRINCIPAL — the main use of land or buildings as distinguished from a subordinate or accessory use. It may be either a permitted or special use.” Worth, Ill., Zoning Ordinance §III.B.162. (1964).

Plaintiff first argues on appeal that defendants violated the zoning ordinance that prohibited, as an accessory use, the parking of trucks of over V-k tons:

“The parking of trucks in the open as an accessory use, when used in the conduct of a permitted business listed hereinafter, shall be limited to vehicles of not over one and one-half tons capacity, when located within 150 feet of a Residence District boundary line.” (Worth, Ill., Zoning Ordinance §VII.D.l.e. (1964).)

Plaintiff argues that the D/a-ton limit was a specific prohibition that overrode the permitted use of public garage in a B2 district (Worth, Ill., Zoning Ordinance §VII. 2.a.(18) (1964)), which was defined as permitting the repair of motor vehicles (Worth, Ill., Zoning Ordinance §III.B.68. (1964)), where the latter ordinance did not contain a limitation on vehicle size. Plaintiff cites the provision that where conditions of different ordinance provisions apply to land use, the regulation that either is more restrictive or imposes higher standards governs. (Worth, Ill., Zoning Ordinance §IV.A.2. (1964).) Plaintiff refers to the inclusion of off-street parking as an accessory use in a B2 zoning district as contradicting the finding that parking and storing of large trucks were principal uses. (Worth, Ill., Zoning Ordinance §VII.D.2.a.(37) (1964).) In the alternative, plaintiff argues that if defendants’ parking of large trucks was a principal use, then that parking was a business activity that had to be conducted within completely enclosed buildings (Worth, Ill., Zoning Ordinance §VII.D.l.c. (1964).) Defendants respond that the parking of trucks of over V-k tons was a necessary part of a public garage’s operation and was therefore a principal use of the property.

Principal use is defined by the ordinance as the main use of the property; it is not defined as a necessary use. The principal use of defendants’ property was to repair vehicles, and the parking of trucks was incidental to the principal use. Therefore, the ordinance prohibiting the parking of the l^-ton trucks as an accessory use (Worth, Ill., Zoning Ordinance §VII.D.l.e. (1964)) was applicable to defendants’ property, and the trial court erred in granting summary judgment in favor of defendants for this violation. We hold that summary judgment should have been granted in favor of plaintiff.

Plaintiff next argues that the surfacing ordinance, which required smooth and durable surfacing material on open off-street parking spaces (Worth, Ill., Zoning Ordinance §IX.F.8.b. (1964)), could be retroactively applied to defendants’ previously conforming use of the property, even though the property was in existence prior to the ordinance’s enactment, if it would be in the interest of the public welfare. But the ordinance specifically states that it applies only to uses of land established after the ordinance’s effective date:

“The off-street parking and off-street loading provisions of this ordinance shall apply as follows:
1. Accessory off-street parking and off-street loading facilities shall be provided as required by the regulations of this Section IX for all buildings and structures erected and all uses of land established in each district after the effective date of this ordinance.” Worth, Ill., Zoning Ordinance §IX.A.l. (1964).

The issue, then, is not whether plaintiff could retroactively apply the surfacing ordinance to defendants’ property; plaintiff chose to make the ordinance apply only prospectively to new buildings and uses. We hold that the trial court properly granted summary judgment in favor of defendants on the alleged violation of the surfacing ordinance.

Plaintiff next argues that the trial court erred in finding that the ordinance prohibiting the storage of junk was unconstitutionally vague because it gave sufficient warning of prohibited conduct and because junk was generally accepted to mean old metal, paper, and rags, and useless stuff or trash. The ordinance at issue provides:

“The following *** uses are specifically prohibited in front, side, or rear yards:
***
(b) Storing of junk or non-operating automobiles or trucks.” (Worth, Ill., Zoning Ordinance §IV.G.2.b. (1964).)

Plaintiff refers to the ordinance’s definition of junkyard, which referred to the storage of “waste or scrap materials including but not limited to scrap iron and other metals, paper, rags, rubber tires and bottles.” (Worth, Ill., Zoning Ordinance §III.B.81. (1964).) Plaintiff also refers to the ordinance that provides that any words not defined are to be construed in their generally accepted meanings as defined “in the most recent publication of Webster’s Dictionary.” (Worth, Ill., Zoning Ordinance §III.A.6. (1964).) Defendants argue that the term “junk” is vague because the ordinance did not define it and because plaintiff’s zoning enforcement officer testified that he was required to make a subjective determination about whether something was junk with which others could disagree.

A statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful. (People v. O’Donnell (1987), 116 Ill. 2d 517, 522, 508 N.E.2d 1066, 1068.) Due process is not violated if the duty imposed by the statute is described in sufficiently definite terms to serve as a guide to those who must comply with it. (People v. Gurrell (1983), 98 Ill. 2d 194, 207, 456 N.E.2d 18, 23.) A statute is not unconstitutionally vague merely because one could imagine hypothetical situations in which the meaning of some terms might be in question. (Schiller Park Colonial Inn, Inc. v. Berz (1976), 63 Ill. 2d 499, 513, 349 N.E.2d 61, 68.) A statute violates due process if persons of common intelligence must necessarily guess at its meaning and differ as to its application. Escalona v. Board of Trustees (1984), 127 Ill. App. 3d 357, 363, 469 N.E.2d 297, 301.

Defendants cite in support City of Collinsville v. Seiber (1980), 82 Ill. App. 3d 719, 403 N.E.2d 90, and Dombrowski v. Pfister (1965), 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116. In Collinsville (82 Ill. App. 3d 719, 403 N.E.2d 90), a municipal ordinance prohibited residents from committing a nuisance in permitting or maintaining “an unsightly yard or premises where there ***** [was] an accumulation or deposit of any vehicle, equipment, junk, wrecked or disabled automobile, trucks, material of any nature, waste or earth.” Defendant there argued that the ordinance was unconstitutionally vague and that the term “junk” was not defined. The court held that the ordinance was not impermissibly vague because the term was significantly explained in the context of the ordinance as a whole. (Collinsville, 82 Ill. App. 3d at 725-26, 403 N.E.2d at 94.) In Dombrowski (380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116), the court addressed challenges to statutes that were not concerned with “junk” as overly broad and as vague regulations of expression.

Plaintiff’s zoning ordinance provides for a definition of the term “junk” by incorporating a dictionary’s definition (Worth, Ill., Zoning Ordinance § III.A.6. (1964)), but the name “Webster’s” is used with more than one dictionary, and dictionary definitions of “junk” vary. For example, plaintiff cites the Webster’s New World Dictionary definition of “junk,” which is different from the definition in Webster’s Third New International Dictionary, which is published by a different publisher. Because section III.A.6. of the ordinance does not refer to a particular dictionary, section III.A.6. is indefinite and therefore void. Instead, the general rule of statutory construction that the plain and ordinary meaning of words is to be used (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492, 494) must be applied here. We hold that the ordinary meaning of “junk” is material of little or no value, such as old metal, glass, and paper. The entry of summary judgment in favor of defendants on this alleged ordinance violation is reversed, and the cause is remanded for a determination whether defendants violated section IV.G.2.b.

Plaintiff next argues that the trial court abused its discretion in denying it preliminary injunctive relief in connection with the building material moved onto defendants’ property. Plaintiff argues that there was an emergency concerning “the ability of the court to effectively resolve disputes between litigants and the meaningful compliance with an order of court.” Plaintiff also argues that the conduct was likely contempt of court and flaunted the court’s authority because the other property owners were defendants in another ordinance violation prosecution. Defendants argue that the petition asked for essentially the same relief as the complaint, that no emergency existed, and that the issue was moot because summary judgment was entered for defendants two weeks later.

A preliminary injunction is not a matter of right (American National Bank & Trust Co. v. Carroll (1984), 122 Ill. App. 3d 868, 880, 462 N.E.2d 586, 595) and is within the trial court’s discretion (In re Marriage of Weber (1989), 182 Ill. App. 3d 212, 218, 537 N.E.2d 1024, 1027). One must show a lawful right for which one seeks protection, irreparable harm, and inadequate legal remedies. (American, 122 Ill. App. 3d at 880, 462 N.E.2d at 595.) A preliminary injunction is used where an extreme emergency exists and serious harm would otherwise result. Junkunc v. S.J. Advanced Technology & Manufacturing Corp. (1986), 149 Ill. App. 3d 114, 117-18, 498 N.E.2d 1179, 1182.

The ordinance allegedly violated prohibited the open storage in yards of building material except during active construction for permissible uses. (Worth, Ill., Zoning Ordinance §IV.G.2.a. (1964).) The petition for preliminary injunctive relief sought relief from allegedly new conditions of the property. The issue whether the court abused its discretion in denying preliminary injunctive relief was not made moot by the entry of summary judgment because summary judgment was not entered upon the matter of the new accumulation of materials. But no emergency was presented by the addition of materials on defendants’ property. The trial court did not abuse its discretion in refusing to grant plaintiff’s petition.

Plaintiff next argues that the trial court erred in refusing plaintiff leave to amend its complaint. Plaintiff argues that it was in the furtherance of justice to permit the amendment because it would conserve judicial time to try the entire dispute before one judge. Defendants argue that the trial court did not abuse its discretion because count IV was an entirely different cause of action based upon facts unrelated to the original complaint and because the original complaint had already been disposed by summary judgment.

Section 2—616 of the Code of Civil Procedure provides that at any time before final judgment, an amendment adding a new cause of action can be allowed on just and reasonable terms. (Ill. Rev. Stat. 1989, ch. 110, par. 2—616.) The standard of review is abuse of discretion. (Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 377, 437 N.E.2d 774, 776.) The factors to be considered in determining whether the trial court’s discretion was properly exercised are whether the amendment would cure defective pleadings, whether other parties would sustain prejudice or surprise by virtue of the proposed amendment, the timeliness of the proposed amendment, and whether there were previous opportunities to amend the pleadings. Kupianen, 107 Ill. App. 3d at 377, 437 N.E.2d at 776-77.

Plaintiff filed the proposed second amended complaint soon after the alleged ordinance violation occurred and prior to the entry of summary judgment on the first amended complaint. Although the new counts alleged a different ordinance violation than did the other counts, the allegations were of the same type as the prior complaints’ allegations of accumulation of junk and the parking of large trucks. The second amended complaint was timely, and defendants would not have been prejudiced. It would be more efficient to resolve the new allegations in the current litigation than in a new lawsuit. But whether or not the trial court abused its discretion, we direct that plaintiff be granted leave to file the second amended complaint upon remand because there will be further proceedings in connection with the allegation that defendants store junk.

Plaintiff finally argues that the trial court erred in giving defendants leave to withdraw the affirmative defense of equitable estoppel without prejudice because the defense was not filed until nearly two years after the lawsuit was filed and after discovery was completed. Plaintiff argues that because the withdrawal was without prejudice, defendants could raise the affirmative defense again upon remand. Defendants argue that the defense was withdrawn after the entry of summary judgment.

We see no error in permitting the withdrawal without prejudice. If defendants wish to reassert the defense upon remand, the trial court will have to determine the appropriateness of the amendment of defendants’ answer pursuant to section 2— 616 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—616).

Defendants argue that the photographs contained in plaintiff’s appellate brief are improper because these photographs were not properly before the trial court on the motion for summary judgment but that the trial court only granted leave to plaintiff to file them later. It is unnecessary to address this issue because the issues on appeal have not required an examination of the photographs’ depiction of the condition of defendants’ property. Defendants’ motion to strike the photographs is denied.

The judgment of the trial court is reversed in part and affirmed in part, and the cause is remanded.

Reversed in part; affirmed in part; and remanded.

RIZZI and TULLY, JJ., concur.

      The word “Webster’s,” derived from the name of the 19th century lexicographer, Noah Webster, is now public property. (Hays, Dictionaries Go To War Over Words, N.Y. Times, October 22, 1991, at 3, col. 4.) For example, Simon and Schuster publishes Webster’s New World Dictionary, Merriam-Webster publishes Webster’s Ninth New Collegiate Dictionary, and Random House publishes Webster’s College Dictionary. Hays, Dictionaries Go To War Over Words, N.Y. Times, October 22, 1991, at 3, col. 4.

      Webster’s New World Dictionary defines “junk” as “1. orig., old cable or rope *** 2. old metal, glass, paper, rags, etc. 3. [Colloq.] useless or worthless stuff; trash; rubbish ***.” (Webster’s New World Dictionary 765 (1982).) But Webster’s Third New International Dictionary defines “junk” as “2. a (1) old iron, glass, paper, cordage, or other waste that may be treated so as to be used again in some form (2): secondhand, worn, or discarded articles of any kind with having little or no commercial value.” Webster’s Third New International Dictionary 1227 (1981).


author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY TAYLOR, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—1390
    Opinion filed June 24, 1992.
    Rehearing denied September 25, 1992.

      Rita A. Fry, Public Defender, of Chicago (Lisa Ottenfeld and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David Stabrawa, and Michael J. Monaco, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Sidney Taylor, charged with first-degree murder and armed violence, was found guilty of voluntary manslaughter in a bench trial and sentenced to 10 years in prison.

On appeal, defendant questions (1) whether the trial court improperly limited the admission of relevant evidence pertaining to his defense theory; (2) whether the State carried its burden of proving that defendant did not act in self-defense or defense of others when he shot David Cameron; and (3) whether the trial court abused its discretion in sentencing defendant to 10 years in prison.

We affirm defendant’s conviction.

Defendant lived on the first floor of a two-flat with his wife, Aislee, and their four children. His sister, Denise Taylor, lived on the second floor with her boyfriend, decedent David Cameron. On March 7, 1987, Denise and the decedent spent time drinking with various people.

At approximately 9 p.m. that evening, Denise and decedent argued in their apartment and decedent began choking Denise with his hands. Marion Taylor, a sister of Denise and defendant, was present and ran downstairs to get defendant. When defendant came upstairs, Denise was out of decedent’s grasp but directed defendant to call the police. Decedent then pointed his finger in defendant’s face and told him: “If you don’t stay out of my business I’m going to f— you up.” Defendant went downstairs and called the police while decedent went from room to room packing a bag. Decedent came downstairs, opened the door to defendant’s apartment and again warned defendant that “[the] next time you [get] in[to] my business I’m going to f— you up.” Defendant gave no reply.

Later that evening, at approximately 1:20 a.m. on March 8, 1987, decedent, his brother Bryant, and a friend, Jerome Baker, returned to the two-flat after several hours of continued drinking. Even though decedent had keys to Denise’s apartment, he was unable to enter the bolted front door, and when there was no response to his knock, he waited in a car until he saw Robert Huston admitted to the building by defendant’s wife, Aislee.

Decedent entered the vestibule behind Huston and began an argument after Huston told decedent that he was denied entry to Denise’s apartment. When decedent attempted to mount the stairs, they began fighting.

Aislee left to wake defendant, while Bryant Cameron and Jerome Baker attempted to break up the fight. At this point, testimony of the eyewitnesses differs.

Defendant testified that he tried to stop the confrontation, then returned to his apartment and placed a gun in his back pocket because he believed decedent to be violent when intoxicated.

Defendant testified that the stairway was blocked by Aislee, and that decedent violently swung her off the stairs. Whereupon defendant took a position on the stairs to block decedent’s path and advised decedent several times that Denise did not want him in her apartment and that the police were looking for him.

Decedent then struck defendant in the side of the head with his fist, knocking him down. Defendant claims that upon falling, he saw decedent reach for something at his beltline which defendant believed was a weapon. Defendant thereafter reached for his gun and fired a shot while in a prone position on the stairs.

Decedent was hit on his left side and ran outside. Unaware that decedent had been struck, defendant stated that he fired a second shot from the doorway, but did not aim or hit decedent with that shot. In his statement to police at the time of the shooting, defendant failed to mention that he saw decedent reach toward his waistband as if for a gun.

Defendant, his wife and Robert Huston testified at trial that Bryant Cameron searched his brother, removed something from him and took it back to his car. However, none of the statements given to police after the incident included that fact and Bryant Cameron denies that it occurred.

Bryant Cameron’s testimony also differed in that he stated that defendant attempted to push decedent out of the hallway and that defendant fired four or five shots at decedent in rapid succession.

The trial court found defendant guilty of voluntary manslaughter based upon a sudden passion sprung from the serious provocation of being punched in the head by decedent.

Defendant’s theory was self-defense or defense of others. Defendant believed decedent was prone to violence when drinking, knew decedent had been drinking throughout that day and believed decedent carried a gun with him that night. Therefore, defendant argues, testimony regarding decedent’s violence, drinking and previous possession of a gun is relevant to defendant’s theory of the case.

Defendant argues that the evidence improperly excluded was:

(1) Denise’s testimony that she told family members to bolt the front door to prevent decedent from entering, which defendant argues would go to his protective state of mind later when decedent attempted to climb the stairs to enter Denise’s apartment;
(2) Denise’s testimony as to whether decedent kept a gun in their apartment, which defendant claims would go to whether he believed decedent carried a gun that night;
(3) Denise’s testimony as to previous beatings she received from decedent and whether defendant knew about those beatings, which defendant argues would establish decedent’s violent tendencies and defendant’s knowledge of them; and
(4) Cross-examination of Bryant Cameron to determine whether he knew his brother to assault Denise when he was drinking, which defendant argues also goes to decedent’s tendency toward violence.

Defendant contends that because testimony on these matters was excluded, he was prevented from fully presenting his theory of defense and a new trial must be granted.

We recognize that a victim’s violent and aggressive character may be used in support of a self-defense claim to explain a defendant’s perceptions of and reactions to the victim’s behavior. (People v. Lynch (1984), 104 Ill. 2d 194, 199-200, 470 N.E.2d 1018; People v. Keefe (1991), 209 Ill. App. 3d 744, 754, 567 N.E.2d 1052; In re W.D. (1990), 194 Ill. App. 3d 686, 706-08, 551 N.E.2d 357; People v. Berry (1988), 175 Ill. App. 3d 420, 427, 529 N.E.2d 1001.) Generally, such evidence is admissible once defendant raises a self-defense theory. Lynch, 104 Ill. 2d at 200.

We further recognize that evidence as to defendant’s state of mind at the moment of the occurrence is material evidence probative of whether the defendant had a reasonable belief that the degree of force used was necessary to avert the particular harm posed. (In re W.D., 194 Ill. App. 3d at 706.) But after examining the record, we find nothing that compels us to reverse the trial court because of exclusion of the disputed evidence.

The trial court properly excluded Denise’s testimony because the questions posed were leading and defense counsel failed to adequately rephrase them or, in some instances, failed to lay a foundation for them.

The State properly objected that defense counsel’s questions regarding Denise’s instructions to bolt the door were leading. Moreover, instructions that she wished to bar decedent from the apartment could hardly be a basis to show defendant’s state of mind such as would allow him to discharge a weapon in denying decedent entry.

The trial judge allowed Denise to testify that she had not seen decedent carry a gun prior to the night of the shooting, but did not allow her to testify whether a gun was kept in their apartment or whether she possessed a gun on the night of the shooting. The court excluded that testimony on grounds of relevancy and we agree with that ruling.

As to the cross-examination of Bryant Cameron on the causal effect of drinking and violence toward Denise, we recognize that a defendant should be given wide latitude in cross-examining State’s witnesses (In re W.D., 194 Ill. App. 3d at 706; People v. Smylie (1981), 103 Ill. App. 3d 679, 684, 431 N.E.2d 1130), but the questions must be within the scope of direct examination, and defendant’s questions on this subject were not.

Although the trial judge might have allowed testimony as to decedent’s violent tendencies, we find such exclusion to be harmless error. The trial judge was already adequately apprised of decedent’s violent tendencies through testimony that Denise had been choked by decedent earlier in the evening and that defendant was twice threatened by decedent.

Therefore, we find that even though defendant alleges numerous evidentiary errors in this case, he fails to demonstrate the kind of prejudice that would compel reversal.

Defendant next contends that it was not proved beyond a reasonable doubt that he was not acting in self-defense or defense of others when he fired his weapon.

Whether an act is justified under the law of self-defense is for the trier of fact and depends on all of the surrounding facts and circumstances. (People v. Felella (1989), 131 Ill. 2d 525, 533, 546 N.E.2d 492; People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866; People v. Graca (1991), 220 Ill. App. 3d 214, 218, 580 N.E.2d 1328.) Where the testimony at trial is conflicting, a reviewing court will not substitute its judgment for that of the trial court, since it is the trial judge who observes the witnesses, weighs their credibility, draw inferences and resolves conflicts in the evidence to determine the reasonableness of defendant’s actions. (Felella, 131 Ill. 2d at 534; People v. Dawson (1991), 213 Ill. App. 3d 335, 341, 572 N.E.2d 972.) The trial court’s determination will not be disturbed unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. Felella, 131 Ill. 2d 525; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

A murder charge can be reduced to voluntary manslaughter if the killing occurred while defendant was under a sudden and intense passion resulting from serious provocation or if the defendant believes the circumstances justify the killing but his belief is unreasonable. Berry, 175 Ill. App. 3d at 428.

In reviewing the evidence, the trial court specifically stated that it found the killing unjustified, that it was not based upon defendant’s unreasonable belief and that defendant was not acting in self-defense.

We agree with the trial court’s determination.

Defendant next argues that the trial court abused its discretion in sentencing him to 10 years because the court (1) improperly considered decedent’s death as an aggravating factor and implied that the legislature erred in designating voluntary manslaughter as a Class 1 felony rather than a Class X felony, and (2) failed to give sufficient consideration to mitigating factors.

The trial court’s alleged misstatements were:

“This [is] a big crime, second only to murder and a life has been taken.
* * *
One person less has been the result of the actions, and life would be deprecated if less than a sentence of imprisonment were imposed.
* * *
[Homicide] is in a Class 1 category, but it is actually second only to murder, and in many respects, it exceeds the Class X category of offenses.”

The trial court’s sentencing determination is entitled to great weight and will not be overturned absent an abuse of discretion. (Felella, 131 Ill. 2d at 541.) In sentencing, the court may consider as an aggravating factor the force employed and the physical manner in which the victim’s death was brought about, but it may not consider the death itself as an aggravating factor. People v. Martin (1988), 119 Ill. 2d 453, 459, 519 N.E.2d 884; People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138; People v. Smith (1991), 214 Ill. App. 3d 327, 343, 574 N.E.2d 784.

However, as this court has recently stated, “it is unrealistic to suggest that the judge in sentencing the defendant must avoid mentioning the fact that someone has died or risk committing reversible error.” People v. Green (1991), 209 Ill. App. 3d 233, 248, 568 N.E.2d 92.

The record in the present case establishes that the court carefully reviewed the evidence, passed sentence and in the process mentioned the death of the victim. These statements, however, do not amount to an abuse of discretion since the record does not establish that the trial court considered it as an aggravating factor.

Defendant also charges the sentence was improperly imposed because the court did not give sufficient consideration to mitigating factors and the sentence was greater than in cases with similar facts. We find the trial court was cognizant of the mitigating factors in this case and the record establishes no abuse of discretion. The court’s 10-year sentence fell within the middle range of the 5- to 15-year term for voluntary manslaughter and we do not find it excessive.

Accordingly, we affirm defendant’s conviction and sentence.

Affirmed.

RIZZI and TULLY, JJ., concur.


author: PRESIDING JUSTICE EGAN

text:
    THE CITY OF CHICAGO, Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Appellees.
    First District (6th Division)
    No. 1—91—0583
    Opinion filed June 26, 1992.
    Rehearing denied September 14, 1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, Ruth Moscovitch, Alan Neff, Diane M. Pezanoski, and Patrick N. Giordano, Assistant Corporation Counsel, of counsel), for petitioner.

      Roland W. Burris, Attorney General, of Springfield (John R Kelliher, Special Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Commerce Commission.
    Sarah J. Read, Gerard D. Kelly, and Anastasia M. Polek, all of Sidley & Austin, of Chicago, for respondent Commonwealth Edison Company.
    MaryNic U. Foster and Robert W. Cushing, both of Chicago, and Frederick B. Zalcman, of Department of Energy and Natural Resources, of Springfield, for Department of Energy and Natural Resources ex rel. Roland Burris.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The City of Chicago (City) has filed this petition for review of an order of the Illinois Commerce Commission (Commission) which approved an energy plan submitted by the respondent, Commonwealth Edison Company (Edison). The City contends that the Commission did not use the proper standard in evaluating Edison’s plan.

The present Public Utilities Act (Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1—101 et seq.) was enacted in 1985 and consists of 14 articles governing the regulation of public utilities. One of the objectives of the Act is “the provision of reliable energy services at the least possible cost to the citizens of the State.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1—102.) Article VIII of the Act, entitled “Service Obligations and Conditions,” contains several sections designed to achieve this “least-cost” goal.

First, section 8—401 imposes a duty on all utilities subject to the Act to “provide service and facilities which are in all respects adequate, efficient, reliable and environmentally safe and which, consistent with these obligations, constitute the least-cost means of meeting the utility’s service obligations.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—401.) Second, section 8 — 102 authorizes the Commission to investigate a utility’s current operations at any time and order a management audit if necessary to ensure least-cost service. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—102.) Additionally, section 8—404 empowers the Commission to require a utility to implement “energy conservation, demand control, or alternative supply programs” whenever it determines, after a hearing, that such programs would likely be cost-effective. Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—404.

Section 8—402, which is the subject of this appeal, requires the Department of Energy and Natural Resources (DENR) to prepare a comprehensive, long-range electric energy plan for the entire State of Illinois and to review the plan at least every two years. Additionally, every two years each public utility providing energy services must file with the DENR and the Commission an energy plan for its territory, consistent with the planning objectives and requirements of article VIII. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(c).) The DENR is then required to review each utility’s plan and provide testimony before the Commission as to the adequacy of each plan in satisfying the objectives of article VIII and the Act. Each plan must contain year-by-year projections of demand and supply for the next 20 years, and most importantly, the utility must demonstrate “that the proposed plan represents the least-cost means of satisfying energy service needs consistent with the objectives of [the] Act, including *** a demonstration that the plan fully considers and utilizes all available, practical and economical conservation, renewable resources, cogeneration and improvements in energy efficiency.” Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(d)(iii).

The Commission is required to hold hearings on the plans and to select the plan “which will result in the greatest likelihood of providing adequate, efficient, reliable and environmentally safe energy services at the least cost to consumers, and which utilizes, to the fullest extent practicable, all economical sources of conservation, renewable resources, cogeneration and improvements in energy efficiency as the primary sources of new energy supply.” (Ill. Rev. Stat. 1989, ch. 1112/3, pars. 8—402(e), (f).) If the Commission determines that a utility’s existing or planned programs or policies inhibit or do not fully ensure the economical utilization of conservation, renewable resources, cogeneration (which is defined as a simultaneous generation of heat and power (83 Ill. Adm. Code §440.100 (1991))) or improvements in energy efficiency, then the Commission is empowered by section 8—402(g) to devise necessary programs and policies and order the utility to implement them. That section also allows the utility to recover the costs of implementing such programs or policies through the rate-making procedures. Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(g).

Section 8—402(d)(iv) of the Act directs the Commission to “determine the precise form, scope and contents” of the least-cost plans. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(d).) Pursuant to this section, the Commission promulgated administrative rules governing the least-cost planning process. 83 Ill. Adm. Code Part 440 (1991) (the Rule).

Under section 440.600 of the Rule, each utility is required to provide an assessment of existing resources, including “[identification of the generating capacity provided by cogeneration[,] nonconventional technologies relying on renewable resources, and other non-utility producers *** that are expected to be available for purchase by the utility.” The assessment must also include a “discussion of existing utility demand side programs and the estimated impact of those programs on the utility’s generating capacity requirement.” (83 Ill. Adm. Code §§440.600(h), (k) (1991).) This section does not require the utility to show that it is currently providing least-cost service or to show that its current service is consistent with the objectives of sections 1—102, 8—401 and 8—402 of the Act.

Section 440.620, however, does require the utility to show that the mix of future resources it selects are likely to be least-cost and are consistent with the objectives of sections 1—102, 8—401 and 8—402 of the Act. (83 Ill. Adm. Code §440.620 (1991).) In furtherance of this objective, section 440.610 requires the utility to consider, at a minimum, all programs and policies contained in the comprehensive electric utility energy plan most recently adopted by the Commission as alternative methods of meeting future demand for electric service. 83 Ill. Adm. Code. §440.610 (1991).

Edison filed its “Electric Energy Plan,” or “Least-Cost Plan,” with DENR and the Commission on January 8, 1990. The Commission instituted proceedings to review Edison’s plan on January 24, 1990. The City of Chicago was one of numerous participants in the proceedings; the Commission granted petitions to intervene filed on behalf of the Office of Public Counsel, Office of Small Business Utility Advocate, Governor’s Office of Consumer Services, the People of Cook County, the People of Illinois, Peoples Gas, North Shore Gas, Northern Illinois Gas, Citizens Utility Board, Illinois Industrial Energy Consumers, Community Action for Fair Utility Practice and National People’s Action.

The parties held two prehearing conferences and nine workshops which resulted in the preparation of a prehearing memorandum identifying the issues in dispute. The prehearing memorandum identified 30 disputed issues relating to the adequacy and appropriateness of Edison’s plan under the requirements of the Act and the Commission’s least-cost planning rule. The Commission then held several evi-dentiary hearings, and the record was closed on September 14,1990.

The hearing examiners issued a proposed order on October 26, 1991. Edison, the Commission staff, DENR, the Office of Public Counsel, the Illinois Industrial Energy Consumers, the Attorney General, and the Small Business Utility Advocate filed exceptions and replies to the proposed order. The City of Chicago, the people of Cook County, the National People’s Action and Community Action for Fair Utility Practice filed joint exceptions.

On December 12, 1990, the Commission issued a 36-page order adopting and modifying Edison’s plan. Edison’s plan, consisting of five volumes and nearly 1,000 pages of text and illustrations, summarized Edison’s planning goals and objectives, analyzed more than 100 alternate demand-side and supply-side resources, and described Edison’s implementation plans for the 1991-92 period. Only the City has appealed. The Commission, Edison and the DENR have appeared as appellees.

In its order, the Commission addressed the purpose of the least-cost planning process, noting that the City had raised a number of issues during the proceeding that reflected a definition of the nature and purpose of least-cost planning which differed from that used by the other parties. The Commission agreed with the view of Edison, DENR, and the Commission staff describing the least-cost planning process as a long-range integrated resource planning process resulting in the selection of future resources and an implementation plan for acquiring those resources. The Commission rejected the City’s view that the purpose of least-cost planning is to produce, subject to various constraints, the lowest cost of meeting the energy needs of the utility’s customers both when new resources are needed and when no resources are needed. The Commission concluded that “the focus of the least-cost planning process is, and should be, on the need for new resources, not generally on the utility’s management of its existing resources.” That conclusion by the Commission is the basis of this appeal. The City contends that the focus of any least-cost plan may not be acquisition of future resources, but rather must be management of existing resources.

The City’s ultimate objective in this case appears to be the implementation of conservation measures designed to free up existing capacity so that Edison can engage in potentially profitable “off-system” sales, that is, sales to utility companies in other regions. The City argued to the Commission that Edison had failed to analyze whether demand-side resources should be added to free up existing capacity for off-system sales. The Commission concluded that the purpose of least-cost planning is to identify cost-effective and reliable resources, demand-side or supply-side, to meet projected future needs of the utility’s own service territory. The Commission found that the potential benefit from off-system sales was speculative, adding the following:

“The Commission is of the opinion that it would not be appropriate to include off-system sales in the cost-benefit analysis for a new resource or in the calculation of avoided costs without a high degree of certainty that such sales would be made. Although it is easy to conclude as the City does that ‘some profitable sales are likely to be profitable’ *** it cannot be concluded that [demand-side] programs which pass a cost effectiveness test only due to an assumption that off-system sales will occur and will be profitable, would remain a cost effective and appropriate resource if such sales fail to materialize. Because the City’s proposal would unduly complicate an already complex process and increase existing uncertainty, it should be rejected.”

Implicit in the City’s argument that the Commission erred in finding that the least-cost planning process is directed only to the acquisition of future resources is an assertion that the Commission would have required Edison to analyze the cost-effectiveness of off-system sales if it had not adopted such a restricted view of the purpose of least-cost planning.

We will first address Edison’s motion to dismiss the petition for review. It argues that the City’s petition presents only an “abstract question,” that the City does not dispute any of the factual findings of the Commission, and the City has not suggested that the Commission would have disapproved the plan if it had adopted the approach suggested by the City. In substance, Edison maintains that the City has not presented us with a justiciable controversy. The Commission and DENR have adopted Edison’s argument.

We concede that Edison’s argument has some appeal. It is the general rule that a court will not decide cases solely to establish a precedent or to guide future litigation. (Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 437 N.E.2d 638.) An exception to the general rule exists in certain cases involving the public interest. In addition to the degree of public interest involved, a court should consider whether it is desirable to make an authoritative determination of the question for guidance of public officials and whether the question is likely to recur. (Hightower v. Duffy (1989), 192 Ill. App. 3d 65, 548 N.E.2d 495.) The question before us will likely recur every two years. (Cf. Sosna v. Iowa (1975), 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553.) It involves the plenary powers of the agency charged with the supervision of utilities providing energy services throughout this State; consequently, it does involve a substantial public interest. Last, we believe that it is desirable to make an authoritative determination of the question for the future guidance of the Commission and the DENR. We conclude, therefore, that the public interest would be better served if we decide the question.

We are asked to decide, not whether the decision of the Comnission was against the manifest weight of the evidence, but whether the Commission decided the case under an improper standard, which is a question of law. (Cf. Azteca Currency Exchange, Inc. v. Illinois Department of Financial Institutions (1983), 112 Ill. App. 3d 279, 445 N.E.2d 398.) We recognize that the Commission’s interpretation of the statute is entitled to substantial deference. (Milkowski v. Department of Labor (1980), 82 Ill. App. 3d 220, 402 N.E.2d 646.) But the Commission’s determination of a question of law is not binding upon a reviewing court. Moncada v. Illinois Commerce Comm’n (1991), 212 Ill. App. 3d 1046, 571 N.E.2d 1004.

We turn now to the City’s arguments. The City contends that the Commission’s order adopting Edison’s plan is contrary to law, because the Commission reviewed the plan under an incorrect interpretation of section 8—402 of the Act. The City maintains that the purpose of the least-cost planning process is to provide utility service at the lowest possible cost, both when new resources are needed and when a change in existing resources would lower the cost of providing service. The City relies on the plain language of the statute in support of its interpretation; alternatively, if this court finds that the statute is ambiguous, the City contends that the legislative history and overall purpose of the Act support its reading of section 8—402.

The primary rule of statutory construction is that the reviewing court must ascertain and give effect to the intent of the legislature which is best evidenced by the language of the statute. (Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 561 N.E.2d 656.) Where the statute is clear and unambiguous, the court may not depart from the plain language and meaning of the statute by reading into it exceptions, limitations, or conditions that the legislature did not express. Kraft, 138 Ill. 2d at 189.

The City argues that by adopting an overly restricted view of section 8—402, the Commission has eviscerated the least-cost duty, giving utilities an unrestrained right to ignore cost savings and to charge any price they want for service until some point in the distant future. This argument is not convincing. The Commission’s order was directed only toward the least-cost planning process, and not the general least-cost duty. Edison admits that it has a general duty under section 8—401 of the Act to provide service and facilities which are adequate, efficient, reliable and environmentally safe, and which constitute the least-cost means of meeting its service obligations. Additionally, Edison concedes that under section 8—404 of the Act the Commission may at any time require Edison to implement energy conservation, demand control or alternative supply programs if such programs are deemed cost-effective. Edison may not charge any price it wants for utility service; sections 9—211 and 9—212 limit the costs that a utility can pass on to its customers. Thus, under the Commission’s interpretation of section 8—402, Edison’s current and continuous least-cost obligation remains in force outside of the planning process through other sections of the Act.

The City argues that the Commission’s finding that the least-cost planning process is directed only toward the acquisition of future resources renders the least-cost duty futuristic and conditional, as it will only arise at some point in the distant future, if and when new capacity is needed.

As Edison correctly notes, the City appears to confuse “resources” with “capacity.” The City’s argument implies that the least-cost duty will arise only when a utility needs to create additional capacity by building a new facility. However, the Commission’s view of least-cost planning is directed toward the acquisition of resources, not capacity. Resources include both capacity, referred to as “supply-side” resources, as well as conservation, demand control and load management programs, referred to as “demand-side” resources. Thus, the least-cost duty will certainly arise in the near future, when utilities need to acquire new resources of any type to meet anticipated demand. Therefore, the Commission’s order in this case does not render the least-cost duty “futuristic” or “conditional.”

Section 1—102, which sets forth the general goals of the Act, states:

“The General Assembly finds that the health, welfare and prosperity of all Illinois citizens require the provision of adequate, efficient, reliable, environmentally safe and least-cost public utility services ***. It is further declared that the goals and objectives of [public utility] regulation shall be to ensure *** the provision of reliable energy services at the least possible cost to the citizens of the State.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1-102.)

Section 8 — 401 imposes a blanket duty upon all public utilities under the Act to

“provide service and facilities which are in all respects adequate, efficient, reliable and environmentally safe and which, consistent with these obligations, constitute the least-cost means of meeting the utility’s service obligations.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—401.)

Section 8—402 implements the least-cost planning process. Subsection (a) of that section states that the objective of the planning process is

“to ensure the provision of adequate, efficient, reliable and environmentally safe energy services at the lowest possible cost to all Illinois energy consumers and users.” Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(a).

The City maintains that these provisions clearly evidence the General Assembly’s intent to impose a current and continuous duty on utilities to provide their services at the lowest possible cost to consumers. In accordance with this objective, the City contends that the legislature intended the least-cost planning process implemented by section 8—402 to require a showing that both current and future demand for energy will be met with least-cost service.

Edison maintains that the City’s interpretation of section 8—402 is contrary to two basic rules of statutory construction: (1) a specific statutory provision controls over a more general provision (Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 111, 576 N.E.2d 268; see also Governor’s Office of Consumer Services v. Illinois Commerce Comm’n (1991), 220 Ill. App. 3d 68, 580 N.E.2d 920 (GOCS)); and (2) no statutory provision should be interpreted so as to render another provision meaningless. In re Application of County Collector (1989), 132 Ill. 2d 64, 72, 547 N.E.2d 107.

First, the City seeks to impose a statutory duty through section 1—102, even though that section is merely prefatory in nature. (See GOCS, 220 Ill. App. 3d at 74 (holding that section 1—102 of the Act does not impose any substantive requirements).) Thus, the requirements of section 8—402 cannot be expanded by the general goals contained in section 1—102. Even if we were to disregard the holding of GOCS, the language of section 8—402 would nonetheless control in this case, because it is more specific than the language of section 1—102. See Maxwell, 216 Ill. App. 3d at 111.

Second, the City’s interpretation of section 8—402 would render other sections of the Act redundant. The City seeks to impose the same current and continuous duty through section 8—402 that is already imposed through section 8—401. Similarly, a broad reading of section 8—402 would render it duplicative of section 8—404, which empowers the Commission to order a utility to implement conservation, demand control, or alternative supply programs if such programs are cost-effective. A logical conclusion is that section 8—401 and section 8—404 give the Commission different powers than section 8—402 does, as those sections authorize the Commission to take action in furtherance of the least-cost goal outside the planning process. Thus, the legislature’s intent to impose a current and continuous least-cost duty is manifested in sections 8—401 and 8—404, while section 8—402 ensures that utilities pursue the goal of least-cost service when planning for the future. In short, the duty sought to be imposed on the Commission by the City under section 8—402 already exists under sections 8—401 and 8—404.

Section 8—402(d)(iii) requires the utility to demonstrate that its plan represents the least-cost means of satisfying energy service needs and that the plan fully considers and utilizes all available, practical and economical conservation, renewable resources, co-generation and improvements in energy efficiency. The City argues that “[n]one of these provisions applies to the future creation of new capacity; they plainly refer to current service of utilities.” This argument begs the ultimate question: whether the plan is directed at replacement of existing resources or selection of future resources. Although the language of the statute does not expressly limit its application to future resources, neither does it expressly require the utility to demonstrate as part of the planning process that its current service is least-cost. We reject the City’s argument that section 8—402(d)(iii) plainly refers to current service.

The City also relies on section 8—402(f), which requires the Commission to “select the plan *** which will result in the greatest likelihood of providing *** services at the least cost to consumers.” (Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(f).) The City contends that this provision supports its view because it contains no temporal restrictions or conditions with regard to the requirement that utilities provide least-cost service. Like section 8—402(d)(iii), however, this provision is not directed toward the utility’s duty; rather, it is directed toward the Commission’s selection of a plan for acquiring future resources. Moreover, section 8—402(f) can be read to contain a temporal restriction: the directive that the Commission select the plan that will result in least-cost service is written in the future tense, supporting the argument that the planning process is future-oriented.

As Edison argues, planning is necessarily a forward-looking activity, and all resources, both demand-side and supply-side, require many years to develop. Any requirement that utilities plan to provide least-cost service immediately would be impossible to satisfy. Thus, common sense supports the Commission’s interpretation of the least-cost planning process.

The City refers to section 8—402(g), which states that if the Commission determines as a result of the hearings that a utility’s existing or planned programs or policies inhibit or do not fully ensure the economical utilization of conservation, renewable resources, cogeneration, or improvements in energy efficiency, then it shall devise such programs and policies as are necessary and order the utility to implement such programs or policies. Thus, section 8—402(g) allows the Commission to analyze the utility’s existing operations and order immediate implementation of conservation programs.

Because the language of section 8—402(g) clearly refers to existing programs, the City infers that the entire planning process requires a review of current operations as well as selection of future resources. However, section 8—402(g) is different from section 8—402(d) in that it does not put the burden on the utility to show that its current service is least-cost; it simply gives the Commission power to act sua sponte within the planning process if it determines that existing programs or policies do not ensure full utilization of economical resource options. Because these two sections impose different burdens, section 8—402(g) may not be read to expand the requirements of 8—402(d) and require utilities to affirmatively show that their current service is least-cost. See Berwyn Lumber Co. v. Korshak (1966), 34 Ill. 2d 320, 215 N.E.2d 240 (courts should not enlarge the scope of plain provisions of legislation in order to more effectively accomplish the overall purpose of the Act).

The City argues that its interpretation of the intent of the least-cost planning process is supported by the Commission’s own “Least-Cost Planning Rule” (83 Ill. Adm. Code Part 440 (1991)) (Rule), which was promulgated pursuant to the Act’s directive that the Commission “determine the precise form, scope and contents” of the least-cost plan. The City maintains, however, that the Rule should be disregarded to the extent that it is inconsistent with the statute.

Although the Commission was charged with responsibility for promulgating the least-cost planning rule, it did not have unbridled discretion in doing so. The Commission’s power under section 8— 402(d) is limited to determining the contents of plans consistent with the requirements of that section and as necessary to effectuate the planning objectives of the Act. (See Ill. Rev. Stat. 1989, ch. 1112/3, par. 8—402(d).) Therefore, if we determine that the Rule is inconsistent with the Act, the Rule must be disregarded and the Act must be followed. We have examined the Rule. For the sake of brevity in an already too long opinion, we simply hold without discussion that the Rule is fully consistent with section 8—402 of the Act.

Again for the sake of brevity we will not discuss at length the parties’ arguments that the legislative history supports their position. Although the Act is not ambiguous and resort to extrinsic aids is unnecessary for us to interpret it, we have considered the legislative debates, the difference between the previous Public Utilities Act and the current Public Utilities Act, a report of the Joint Committee on Public Utility Regulation and the final report of the Governor’s Task Force on Public Utility Regulation, upon which the Joint Committee relied. Suffice it to say that we conclude that the legislative history supports the interpretation of section 8—402 given by the Commission. For one example, the report of the Task Force created by the governor to study public utility regulation recommended that the required utility plans demonstrate “that the utility’s current and projected operations represent the lowest possible cost satisfaction of its customers’ energy service needs.” (Emphasis added.) The Joint Committee report, however, did not contain a requirement that utilities demonstrate that their current operations were least-cost. We find it significant that the language supporting the City’s view was not drafted into either the Joint Committee report or the Public Utilities Act.

For all these reasons, we conclude that the Commission correctly interpreted section 8—402 of the Public Utilities Act. The decision of the Commission approving Edison’s plan is affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

      Demand-side programs are those concerned with conservation and load management; supply-side programs are concerned with existing resources, that is, present capacity.