text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Almanza, Defendant.—(Allan A. Ackerman, Contemnor-Appellant.)
    (No. 74-106;

    Third District
    February 13, 1975.

      Allan A. Ackerman, of Ackerman, Durkin & Egan, of Chicago, for appellant.
    L. E. Ellison, State’s Attorney, of Morrison (Joseph Spiezer, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Frank Almanza Jr. was charged in indictment for violation of the Illinois Controlled Substances Act. After several contiuances trial was set for Tuesday, December 11, 1973, at 9:30 A.M. in the circuit court of Whiteside County. The State’s attorney, L. E. Ellison, was advised on Saturday, December 8, that defense counsel, Allan Ackerman of Chicago, would not be able to appear on December 11 but could proceed on December 12. Ellison told Ackerman that this fact should be communicated by Ackerman to the court. Ellison did not himself so inform the Court. Witnesses were notified to appear and prospective jurors were summoned. On December 11, 1973, at 9:30 A.M. the State’s attorney, the witnesses, and the jury were present. Almanza and his counsel, Ackerman, were not present. Judge Patton held the cause for trial, and the jury and witnesses were retained. The judge had a conversation with Thomas Durkin, a partner in the firm of Ackerman, Durkin and Egan, about 10 A.M. on the morning of December 11, 1973, and Durkin asked Judge Patton to hold the case either at 1:30 P.M. or the next day. Judge Patton told Durkin to have the defendant in court at noon and to have someone there to try the case at 1:30 P.M. Durkin told the judge someone would be there. Durkin himself had a contested divorce matter in Cook County, and his request for a continuance was denied. Ackerman stated the first knowledge he had of the mixup was when he returned from court on December 11, between 12:15 and 12:30 P.M. Once Ackerman learned of the mixup a series of phone calls to the court followed to the effect that Ackerman was ready, willing and able to appear for trial in the afternoon. He could not have gotten there before 3 P.M. Informed of this and apparently told at 1:30 P.M. that no one was coming, Judge Patton put the matter over. Ackerman failed to notify Almanza of the trial date and was without knowledge that Almanza didn’t appear or that a bond forfeiture had been issued for him. Almanza was arrested on a body warrant and spent some 36 hours in jail for failure to appear at trial. Sometime later Almanza acquired other counsel which disposed of his case. (Almanza eventually pleaded guilty to the charge so that a jury was not required to resolve the issues, and he was sentenced to a term of from 18 months to 5 years in the penitentiary.)

On January 16, 1974, a rule to show cause was entered against Ackerman, and on February 4 Judge Patton conducted a hearing which included statements by Judge Patton, Ackerman, Durkin and Ellison and found Ackerman in contempt of court for failure to appear with and on behalf of his client. Judge Patton assessed a fine of $500 and a 36-hour jail sentence which was suspended. The order recites that the period of confinement for Ackerman was “commensurate with the period of time his client, Frank Almanza, Jr. was committed to the county jail due to the negligence of his attorney Allan Ackerman.” According o the order the basis in fact for the citation was that Ackerman was attorney for Almanza, the jury trial was set to proceed, the jury venire appeared together with the judge, State’s attorney, and various prosecution witnesses, neither defendant nor anyone representing him appeared for him, the court communicated with Ackerman’s partner and was informed that a member of the firm and the defendant would appear and be ready for trial by 1:30 P.M., the cause was originally set for 9:30 A.M., neither defendant nor any member of the firm appeared at 1:30 P.M., the jury was excused, a bench warrant was issued for the arrest of Frank Almanza, Almanza was arrested and spent 36 hours in jail and Almanza had not been notified of the trial by Ackerman or anyone acting on his behalf.

Due to the view we take of this case it is only necessary to consider one of the issues raised by appellant, i.e., whether it was prejudicial error for the trial judge, Judge Patton, to preside at the contempt hearing. Appellant cites three cases in support of his contention that the facts here, if constituting a contempt, constitute indirect, not direct, contempt. (People v. Westbrooks, 242 Ill.App. 338; People v. McDonnell, 307 Ill.App. 368, 30 N.E.2d 80; People v. Stafford, 118 Ill.App.2d 453, 255 N.E.2d 17.) Although none of these cases are exactly on point, it can be held in the present case in accord with these cases and case law in general, that the contempt here, if any, would be indirect contempt, therefore necessitating a hearing and the rights of procedural due process. However, we need consider here only the propriety of Judge Patton presiding at the hearing. The following from the record should be noted:

“The Court [Judge Patton]: “All right. Now if you would like the Court will be sworn, if you would like to have it. I am going to make some statements to what I did. If you would like me sworn, I will be glad to be.”

The judge then went on to testify as to his calling the Ackerman office in Chicago and all the ensuing events. This was the same judge who ordered the rule to show cause and was to make the decision as to whether Ackerman was guilty of contempt. It may also be noted from the record that Judge Patton stated:

“* * * it is not that you have offended the Court; you have nothing in your conduct that has been contemptuous of this Court at all, as far as this particular judge is concerned. But the thing that bothers me the most is that a man had to spend over thirty-six hours in jail. I don’t care what he has done, if he has posted his bond and he has paid $2500 into a lawyer’s pocket, I don’t care if they have to get the sheriff to advise him of when his trial is or the date. They owe him something to keep him from sitting in jail for thirty-six hours.”

Later, in the record, Judge Patton declared:

“As the Court stated, there is nothing in your attitude that has been contemptuous of this Court; but the fact that we had a jury in here, it was a little difficult; if it is not embarrassing to the Court, but I am sure it is embarrassing to the whole judicial system to try to explain to forty-some people as to why the case is not going to be tried and that the lawyer didn’t appear. We didn’t make that observation in the morning, but it became obvious in the afternoon. There was no other way. They could see Mr. Ellison. And the State, the County has been put to a considerable expense to bring these people here.
And even that can be excused, I think, but the fact that a defendant who had paid an attorney $2500 spent thirty-six hours in jail when his attorney had been advised by the Court that the man must appear at 12:00 o’clock, it would seem to me that it would behoove that office to make every effort, if no more than through the Sheriffs office, for paying for service to see that that man was notified that he was to appear before this court.”

At another point, just prior to sentencing Ackerman, the court stated:

“The explanation given, I think, certainly mitigate some; but I find that there is no excuse for a man who has pocketed $2500 of a defendant’s money not making more effort to let him know that he has a trial coming up on December 11 and, after his office has been advised that the man is to report at 12:00 o’clock on December 11, that more efforts than a telephone call are not made to see that that defendant is present and, at least, knows that he is to be present. To me it is a dereliction of a duty towards a client; and I find that more contemptuous than the fact that this county pays for having a jury here for a whole day. The State’s Attorney’s tíme, the time of the Court is paid for by the State, and he is here anyway. So, that isn’t as important; but I think those other things are.”

Since from the foregoing remarks of the judge it seems he was quite disturbed about Almanza spending time in jail because of his failure to appear, we are at a loss to understand the judge’s concern when it was his conduct which instigated the re-arrest, even though the prior events were known both to the judge and that State’s attorney. Although there is ample case law support for the contention that the appointment of another judge to hear evidence in a contempt proceeding is not always required, and both cases cited by appellant, Mayberry v. Pennsylvania, 400 U.S. 455, 27 L.Ed.2d 532, 91 S.Ct. 499, and In re Dellinger (7th cir. 1972), 461 F.2d 389, are distingishable on their facts in that both cases involved rather overt personal attacks on the trial judge that could have been punished summarily, it is still evident from the record here that the remarks of the court illustrate a certain amount of personal antagonism between the court and defense counsel. Considering this factor plus the fact that Judge Patton both intended and did testify as a witness at the hearing, and considering the importance of avoiding not only the substance but also the appearance of impropriety, it is necessary under the specific facts in this case to hold that another judge should have been appointed to hear the evidence.

For the foregoing reasons, the cause is reversed and remanded for proceedings in accordance with this opinion.

Reversed and remanded.

SCOTT and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    William A. Savitch, Plaintiff-Appellant, v. Richard E. Allman, Defendant-Appellee.
    (No. 74-41;
    Third District
    February 13, 1975.

      Olivero and Olivero, of Peru (Louis Olivero, of counsel), for appellant.
    Johnson, Martin & Russell, of Princeton (Watts Johnson, of counsel), for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Bureau County assessing $160 in attorney’s fees as against the attorney for the plaintiff in this cause for an unreasonable refusal to answer interrogatories.

From the record it is apparent that plaintiff filed the action in this cause for damages suffered in an automobile collision on January 16, 1973. On February 23, 1973, defendant Richard E. Allman moved to strike the complaint and simultaneously served interrogatories on plaintiff in accordance with Supreme Court Rule 213 (Ill. Rev. Stat. 1973, ch. 110A, par. 213). Under the provisions of Rule 213(c) it is provided that a party has 28 days to answer such interrogatories. Plaintiff, therefore, should have answered the interrogatories on or before March 23, 1973. No answers to the interrogatories had been filed by the middle of September and on September 18, 1973, defendant’s attorneys wrote a letter to the plaintiffs attorney reminding him that such answers were long overdue.

Another 30 days produced no results with respect to answers to interrogatories, and on October 18, 1973, defendant filed a motion for sanctions as against plaintiff and his counsel under Supreme Court Rule 219(c). That rule reads in part as follows:

“If a party 9 * * unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including among others * * * that the offending party or his attorney pay the reasonable expenses, including attorney’s fees, incurred by any party as a result of the misconduct ** # # >9

A hearing was set on the motion for October 22, 1973, but was continued at the request of plaintiff’s attorney who had other court business. He did not inform defendant that the answers to the interrogatories would be forthcoming shortly. Several days later, the answers were mailed to defendant’s attorneys who received them on October 29, 1973. Defendant had refiled the motion for sanctions before the interrogatories were received, and a second hearing date of November 7 was again postponed at tlie request of the attorney for plaintiff. Finally, after a hearing on November 29, 1973, the trial court found that the attorney for plaintiff had unreasonably and willfully refused to answer the interrogatories. As a sanction, the trial court assessed, as against plaintiffs attorney, $160 in attorney’s fees (less than requested by defendant’s counsel in a motion specifying the costs and attorney’s fees incurred by defendant as a result of delays in filing of answers to interrogatories by plaintiff). It is the order requiring the attorney for plaintiff to pay the $160 in attorney’s fees which is challenged on his appeal.

Plaintiffs attorney does not question the power of the court to assess fees as against him, nor does he dispute the fact that he submitted the answers 220 days after they were due and 41 days after being reminded by defendant of the situation, but such counsel contends that the delay was not “an unreasonable refusal” within the meaning of Rule 219 and, also, that the fees assessed were assessed as a penalty rather than for the purpose of promoting the ends of discovery. He also contends that the court should first have ordered him to show cause why penalty should not be assessed before such a penalty is imposed.

It is true that the purpose of the sanctions which are available to the trial court under Supreme Court Rule 219 are basically to be used to accomplish the objects of discovery and not simply to penalize the party who is less than diligent in complying with discovery procedures. (People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 196, 226 N.E.2d 6 (1967).) As we examine the record in the instant case, we note that the sanction was imposed on attorney for plaintiff a full month after he had delivered the answers to defendant. We cannot, however, agree that the sanctions as to attorney’s fees were imposed simply as punishment and not designed to promote discovery. The attorney for plaintiff had made no response to file interrogatories for 7 months after they were filed (6 months after answers were due). Defendant had reminded the attorney of the situation, but after another month had passed, no answers had been forthcoming. Only after the passage ,of this period of 8 months, and after defendant had filed the motion for sanctions, did the attorney for plaintiff make an effort to provide the answers according to the record.

We do not believe that the trial courts are required to condone this type of conduct, and that minor sanctions, such as restitution of amount expended as attorney’s fees by a party by reason of such delay, may be assessed so as to do justice to all parties in the cause. Under Supreme Court Rule 213(c) the attorney for the plaintiff is required to respond to interrogatories within 28 days. He delayed for over half a year. Defendant was forced to expend additional amounts of money in attorney’s fees to obtain a response from plaintiff’s attorney. The sanctions imposed were comparatively light since, under Rule 219, the trial court had the power to dismiss plaintiff’s entire case and enter judgment as against him.

It is obvious that to impose no sanction of any kind would create a feeling among attorneys that discovery deadlines could be lightly ignored and even willfully flaunted. The deadlines are imposed for significant reasons, particularly to keep the litigation constantly progressing toward a prompt and just termination, and to insure that evidence is made available to both sides while it still exists. By notifying the attorney for the plaintiff and other attorneys that discovery rules may not be lightly disregarded, the sanction imposed in this case may serve to further the objectives of the discovery procedure. We do not agree with the attorney for the plaintiff that the delay in answering the interrogatories was not “unreasonable” under the precedent of Gillespie v. Norfolk and Western Ry. Co., 103 Ill.App.2d 449, 243 N.E.2d 27 (1968) and similar cases. In Gillespie, the trial court had dismissed plaintiff’s complaint for his failure to answer interrogatories, and the appellate court found that the sanction thus imposed was too harsh. In that case, the defendant moved to dismiss the complaint after only 19 days from the time the answers were due and 6 days after receiving assurances from the plaintiff that answers would soon be forthcoming. Thus both the time factors and the severity of the sanction distinguish Gillespie from the cause before us. The court in the Gillespie case simply found (at 454) that:

“There is no circumstance to indicate that plaintiff, or plaintiff’s attorneys, were either refusing to furnish answers to the interrogatories, or ignoring the request.”

In the cause before us, the trial court could have considered that there were two circumstances which indicated vexatious delay amounting to a refusal. There was a 6-month delay after the deadline during which time defendant heard nothing about the answers to the interrogatories and, also, plaintifFs attorney failed to respond within 30 days following a reminder from defendant that the answers were long overdue. As we had stated in Bender v. Pfotenhauer, 21 Ill.App.3d 127, 130, 315 N.E.2d 137 (3rd Dist. 1974), “* * # the burden of establishing by affidavit or otherwise that his failure to comply with the rules was warranted by extenuating circumstances or events # * *” was on the noncomplying party. Cf. Schwartz v. Moats, 3 Ill.App.3d 596, 277 N.E.2d 529 (1971).

Other cases cited by plaintiff involved action by the trial court dismissing a party’s complaint or defense and entering judgment as against the offending party. (Dorhin v. Yellow Cab Co., 14 Ill.App.3d 586, 302 N.E.2d 633 (1973); Bower v. Chicago Transit Authority, 4 Ill.App.3d 1021, 283 N.E.2d 250 (1972); Bergin v. Ashford, 130 Ill.App.2d 835, 264 N.E.2d 266 (1970).) Sanctions involved in those cases were severe, and the courts have been understandably lenient with and sympathetic to parties who have been deprived of a day in court, absent some showing of “a deliberate and contumacious disregard” of the rules or of a court order. Booth v. Sutton, 100 Ill.App.2d 410, 415-16, 41 N.E.2d 488 (1968).

The attorney for the plaintiff in the cause before us also places great weight on the fact that defendant did not first seek a specific court order requiring him to file the answers as has been done in some cases. There is nothing in the rules which requires that such action be taken by the party complaining of a failure to comply with the rules of court. The rules have specific provisions for procedures for sanctions in the event of a failure to comply with provisions of the rules. It is not a prerequisite to the action to require the imposition of sanctions under Rule 219 that a preliminary court order be sought, obtained, and thereafter ignored by the offending party. Violation of a court order would presumably have made the attorney’s conduct more culpable, but the fact that no such order was first obtained does not excuse the unreasonable delay in complying with the Supreme Court Rules. If a specific order was required in all cases before sanctions are imposed, a dilatory attorney could simply delay as long as he wished, with consequential inconvenience to the court and other litigants, until he is commanded by order to perform an act which is required by tire rules. No such procedure is required nor would it be desirable.

Counsel for plaintiff also argues that defendant has neither alleged nor shown prejudice to defendant’s case. It is enough to say that defendant has been required to pay at least $160 in additional attorney’s fees for the sole purpose of obtaining compliance by the attorney for plaintiff with the discovery rules, and the sanction imposed by the trial court was simply in the nature of restitution and was proper. No further prejudice need be shown.

As has been indicated in many cases, the trial court has broad discretion in the conduct of pretrial discovery procedures, and such discretion includes the imposition of reasonable sanctions as against dilatory parties. As a court of review we do not interfere with actions of such nature unless the discretion has been clearly abused. (Bender v. Pfotenhauer, 21 Ill.App.3d 127, 315 N.E.2d 137 (1974); Serpe v. Yellow Cab Co., 10 Ill.App.3d 1, 293 N.E.2d 742 (1973).) We find no abuse of discretion in the cause before us from the order of the trial court requiring that $160 in attorney’s fees be paid by attorney for plaintiff as a discovery sanction pursuant to Supreme Court Rule 219.

Defendant also contends that by reason of the conduct of attorney for plaintiff, the complaint in this cause should be dismissed as an additional sanction. We do not agree that this is necessary or required by reason of the conduct referred to in the record.

Attorneys for defendant also contend that the cost to defendant of attorney’s fees and other costs occasioned by this appeal should be assessed as against the attorney for the plaintiff by reason of the appellate litigation undertaken arising solely from the imposition of the sanction to require payment of the $160 referred to. While this would be an appropriate sanction under tire precedent of Schwartz v. Moats, 3 Ill. App.3d 596, 277 N.E.2d 529, (1971), it appears that the attorney for plaintiff may have mistakenly assumed that a specific order had to be directed to him before he became obligated to file answers to the interrogatories. Although this is not the required procedure, we assume a good faith effort on the part of attorney for plaintiff to obtain clarification of the applicable law and consequently have determined that no further sanctions should be imposed on attorney for plaintiff other than the sanction imposed in the trial court. The order of the trial court will, therefore, be affirmed.

Order affirmed.

STOUDER, P. J., and STENGEL, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Guy Anthony Holt, Defendant-Appellant.
    (No. 74-111;
    Third District
    February 13, 1975.

      James Geis and Richard Steck, both of State Appellate Defenders Office, of Ottawa, for appellant.
    A. Randolph Comba, State’s Attorney, of Princeton, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a conviction for robbery following a negotiated plea of guilty, in the Circuit Court of Bureau County. Defendant was sentenced to a term of imprisonment of not less than 1 nor more than 5 years.

On appeal in this court defendant challenges the trial court’s compliance with Supreme Court Rule 402 at the time he entered his plea of guilty. (See Ill. Rev. Stat. 1973, ch. 110A, par. 402.) Holt had been indicted originally on charges of robbery, aggravated battery and conspiracy. He was represented by appointed counsel. Following the entry of the plea of guilty to the robbery charge after plea negotiations, the State’s attorney nol-prossed the other indictments.

The particular points which were raised by defendant are that the court failed to determine that there was an adequate basis for the charge under Rule 402(c) and, also, that the court erred in not advising defendant that there was a mandatory 3-year parole term which is involved with any sentence for a Class 2 felony such as robbery. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(e).

Under Rule 402(c) the court is not to enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea. No special method is required to be used by the trial court and the determination of the factual basis may be developed by questioning defendant, or receiving the facts from defense counsel, or a witness, or listening to a summary of available evidence from the prosecutor, or even from a review of a presentence report in court, or by any other means which may seem best for the kind of case involved. People v. Dugan, 4 Ill.App.3d 45, 46, 280 N.E.2d 239.

In the cause before us, defendant acknowledged that he read the indictment and that he understood that the charge was robbery, which he stated meant “taking some money which didn’t belong to me.” He understood the occurrence was on the date charged and that he had discussed the nature of the charge with his attorney and fully understood it. The State’s attorney then told the court that he would show at the trial that defendant took United States currency from the presence of one Brian Bradner by force or threat of force ir Bureau County on September 26, 1973. Defense counsel thereupon stipulated that the witnesses would testify substantially to that effect. We recently have found sufficient compliance with Rule 402(c) in a similar factual setting in People v. Wilson, 23 Ill.App.3d 457, 318 N.E.2d 767 (3rd Dist. 1974). Cf. People v. Cody, 23 Ill.App.3d 164, 318 N.E.2d 700.

Even though a court might not fully comply with Rule 402(c), the Illinois Supreme Court has indicated in People v. Dudley, 58 Ill.2d 57, 60-61, 316 N.E.2d 773 (1974), that:

‘It does not follow, however, that the failure to comply with these provisions * * * must result in a reversal of the judgment of conviction. There is no claim that the plea of the defendant, who was represented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant. When questioned by the judge the defendant expressed himself as being satisfied with the plea agreement which had been negotiated for him by his attorney, and even now there is no expression of dissatisfaction with the plea agreement’s terms. And finally, there is no contention by the defendant that the plea agreement was not honored — no claim that the sentence imposed was not the one agreed upon.”

It is, therefore, only substantial compliance which is required under Rule 402. People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559; People v. Warship, 59 Ill.2d 125, 319 N.E.2d 507.

Here defendant stated in his plea of guilty that he was charged with “taking money that didn’t belong to him” from a named victim on a specific date, and he was aware that he would receive a piison sentence by so pleading. He does not allege that the record would show a factual situation inconsistent with the crime charged, if the court had elicited a more detailed factual basis, nor does he allege that he has pleaded to a crime he didn’t commit and would change his plea if given another chance. He was represented by counsel, and there was no disagreement with the outline of facts given by the prosecutor. Defendant received exactly the sentence he had bargained for. We, therefore, find no basis for reversal for a failure to comply with Rule 402(c).

As to the contention that the court failed to advise defendant of the 3-year mandatory parole term, we have indicated in People v. Wilson, 23 Ill.App.3d 457, 318 N.E.2d 767 (following the Supreme Court expression on the issue in People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559) that it is not necessary to admonish a defendant as to a parole term which is incidental to a sentence under the terms of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(e)). While the statement in the Krantz opinion was not essential to that case and might be classified as dictum, we believe that this expresses the conclusion which would be followed by the Supreme Court, and we have accordingly found that such omission is not a basis for reversal.

We noted that in the opinion by the Fourth District Appellate Court in People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, the guilty plea would have been vacated for failure to inform defendant of his parole term, if the appellate court had not held the statute itself to be unconstitutional. We called attention to the fact that the Supreme Court in Krantz spoke on tire exact question and stated that the Supreme Court would not consider that substantial compliance with Rule 402(a) (2) required such admonitions. The Wills case is being considered by the supreme court at the present time.

The parole term is a direct consequence of a guilty plea, but it does not affect defendant if he completes his parole successfully. Typical parole conditions, such as obeying all laws or refraining from specific activities, are not unreasonable nor are they harsh. It is only when a parolee violates these conditions that he may be subjected to incarceration again. Since future action or misconduct on part of the parolee himself is required to create any adverse consequences to defendant, it is apparently considered to be too far-reaching to require that the trial courts admonish the defendant as to the parole term. As a matter of fact, defendant Holt did not allege on appeal that he did not know about the parole term, but only that the court did not tell him. He does not allege that he would perhaps have pleaded “not guilty” had he been admonished as to the parole term.

For the reasons stated, the judgment of the Circuit Court of Bureau County is affirmed.

Affirmed.

STOUDER, P. J., and STENGEL, J., concur.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willard Ritchie, Defendant-Appellant.
    (No. 73-202;
    Third District
    February 13, 1975.
    James Geis and Richard Steck, both of State Appellate Defenders Office, of Ottawa, for appellant.

      C. Brett Bode, State’s Attorney, of Pekin (Jay H. Janssen, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Willard Ritchie, the defendant, was indicted by the grand jury of Tazewell County for the offenses of burglary, aggravated battery, misdemeanor escape, and felony escape. Pursuant to negotiations, he entered pleas of guilty to burglary, aggravated battery, and misdemeanor escape, and he was subsequently sentenced by the Circuit Court of Tazewell County to concurrent prison terms of not less than 3 nor more than 9 years for burglary, not less than 1 nor more than 3 years for aggravated battery, and 1 year for misdemeanor escape.

On appeal the defendant contends that tire trial court failed to properly admonish him in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). His specific contention is that tire trial court accepted his plea of guilty without first explaining the charges to him and without determining that he understood them as is required by Supreme Court Rule 402( a) (1).

The record discloses that the defendant at arraignment appeared in court with his attorney. The trial court advised the defendant as to the charges against him and provided him with copies of the indictments which had been returned. After advising the defendant as to the charges against him the following colloquy ensued:

“Court: Then from my explanation to you and the information given to you by your attorney, do you fully understand the nature of the offense with which you are charged * * * so you understand what I have said. Defendant: Yes.”

We find the situation present in the case now before us quite similar to that which existed in People v. Trinka, 10 Ill.App.3d 183, 293 N.E.2d 179. In Trinka we affirmed a plea of guilty where defendant’s attorney, in presence of the defendant, established in open court that the attorney had gone over the information charging defendant with misdemeanor theft, and where the defendant acknowledged that such was true and indicated a desire to plead guilty to the charge. In the instant case the defendant acknowledged that his attorney had provided him with information and that this information coupled with admonitions of the court conveyed to him the nature of the offense with which he was charged by several indictments. The record further discloses that the defendant specifically stated to the court that he understood the nature of the offenses.

Subsequent to the brief of the defendant being filed in this appeal, we granted two motions of the defendant to add additional authority to his brief in support of his contention that he was not properly admonished as to the nature of the charge. One of the cases cited as additional authority is an appeal decided by this court, to-wit, People v. Weaver, 18 Ill. App.3d 651, 310 N.E.2d 202. In examining Weaver we fail to find that it is material to the instant case in that the State in Weaver admitted that the nature of the offense was not explained to the defendant but attempted to justify such an omission on the basis of the defendant’s conduct. The defendant further cites the case of People v. Lampe, 16 Ill.App.3d 975, 307 N.E.2d 176, wherein the Appellate Court of the Fifth Appellate District held it to be reversible error when the trial court failed to inform the defendant of the essential elements of the crime with which he was charged. We prefer to adhere to die rule expressed in Trinka as we did in the case of People v. Powell, 21 Ill.App.3d 423. The factual situation in Powell is necessarily quite similar to that in the instant case since Powell and the defendant in tin's appeal were jointly involved in the same criminal transactions.

The defendant next argues that the trial court failed to obtain a factual basis for the pleas of guilty to the charges of escape and aggravated battery and therefore violated Supreme Court Rule 402(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(c)). We do not agree with this argument of the defendant, since the trial court had previously heard a factual basis for the crimes of aggravated battery and escape in another case involving defendants who were companions of the defendant in the instant case when the crimes were committed and who were arrested with the defendant. In People v. Doe, 6 Ill.App.3d 799, 286 N.E. 2d 645, it was held by the reviewing court that the supreme court rule providing that the trial court shall not enter final judgment on a plea of guilty without first determining a factual basis for the plea does not require that factual basis be set out in detail on the record. In Doe the trial court determined that there was a factual basis for pleas of guilty to the charges of armed robbery, attempted rape and attempted murder from a conference with the defendant. This method used by the trial court in Doe to determine that there was a factual basis was determined to be sufficient compliance with the requisites of Supreme Court Rule 402(c). An examination of the record in the instant case makes it abundantly clear that the trial court from companion cases was able to determine that there was a factual basis for entering judgment on the pleas of guilty tendered by the defendant. The defendant stipulated that there was a factual basis for his pleas, and this stipulation was buttressed by his admission that if certain witnesses were called their testimony would support the charges against him. (See People v. Reddick, 11 Ill.App.3d 492, 297 N.E.2d 360; People v. Miller, 6 Ill.App.3d 354, 285 N.E.2d 488.) We cannot agree that there was failure on the part of the trial court to determine a factual basis for defendant’s pleas of guilty to the charges of escape and aggravated battery.

The defendant further raises the issue that his pleas of guilty to the various charges against him were not knowingly and understanding^ entered because he was never admonished concerning a mandatory parole term. Section 5 — 8—1 of the Unified Code of Corrections provides “(a) [that a] sentence of imprisonment for a felony shall be an indeterminate sentence * * * [and] (e) [e]very indeterminate sentence shall include as though written therein a parole term in addition to the term of imprisonment.” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1.

We have previously passed on this question in People v. Wilson, 23 Ill.App.3d 457, 318 N.E.2d 767. In Wilson we noted that our supreme court in People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, spoke on the exact question stating, “ ‘As we have just noted, we do not consider that substantial compliance with Rule 402(a) (2) requires such admonitions.’” 23 Ill.App.3d 457, 460.

Lastly, the defendant claims that the trial court erred by ordering judgment of conviction and sentence on both the charges of aggravated battery and escape since both charges arose from the same or identical conduct. The People agree with this contention of the defendant and rightfully so. See People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293.

For the reasons stated, the judgment of the Circuit Court of Tazewell County entered on the offenses of burglary and aggravated battery and the sentences imposed thereon are affirmed. The judgment is reversed and vacated as to the offense of misdemeanor escape.

Affirmed in part and vacated in part.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    Quinlan and Tyson, Inc. et al., Plaintiffs-Appellees, v. The City of Evanston et al., Defendants-Appellants.
    (No. 59723;
    First District (2nd Division)
    January 28, 1975.

      Jack M. Siegel, Corporation Counsel, of Evanston, for appellants.
    Peterson, Ross, Rall, Barber & Seidel, of Chicago (Donald L. Padgitt, Russell M. Pelton, Charles Edwin Johnson, and Ellen J. Kerschner, of counsel), for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs Quinlan and Tyson, Inc., a real estate brokerage firm, and Jody Taylor, a sales representative of Quinlan and Tyson, filed a complaint in the circuit court of Cook County asking for administrative review (Ill. Rev. Stat. 1973, ch. 110, § 264 et seq.) of a finding by defendant Evanston Fair Housing Review Board that Quinlan and Tyson and Jody Taylor were guilty of engaging in various discriminatory practices in violation of the Fair Housing Ordinance of the city of Evanston. (Evanston, Ill. Code 1970, ch. 25½, § 25½-l et seq.) The circuit court set aside the findings of the Evanston Fair Housing Review Board and defendants City of Evanston and the Evanston Fair Housing Review Board take this appeal.

The apparent applicability of two recent Illinois Supreme Court deeisions, Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22, and Paper Supply Co. v. City of Chicago, 57 Ill.2d 553, 317 N.E.2d 3, regarding the use of the Administrative Review Act by municipal administrative agencies requires comment before proceeding to the merits of this appeal. We conclude that, although these two cases require invalidation of that section of the Evanston ordinance incorporating the Administrative Review Act, they do not require a dismissal of the instant appeal for lack of jurisdiction.

The Evanston Fair Housing Ordinance under which plaintiffs were charged and convicted states:

“Any broker whose license has been suspended or revoked, or any complainant aggrieved by the decision of the Board, shall have full right to appeal from such order of suspension or revocation in accordance with procedures specified in the Administrative Review Act of Illinois.” (Evanston, Ill., Code 1970, ch. 25½, § 25½— 17.)

It was apparently pursuant to this authorization that plaintiffs sought administrative review in the circuit court of Cook County of the Board’s findings. However, after the circuit court had set aside the Board’s findings, the Illinois Supreme Court decided Paper Supply Co. v. City of Chicago, 57 Ill.2d 553, 317 N.E.2d 3.

In Paper Supply Co., the city of Chicago had made the Administrative Review Act applicable to the administrative decisions rendered under Chicago’s ‘head-tax” ordinance. However, the court held such a provision invalid, stating:

“The method of judicial review of the decisions of the defendant city’s administrative agencies is not a ‘function pertaining to its government and affairs’ within the contemplation of section 6 of article VII of the Constitution of 1970 [Home Rule provisions], and the determination of the manner or method of such review is not within the powers conferred upon the City.” 57 Ill.2d 553, 580.

The court relied on Paper Supply Co. in the subsequent case of Cummings v. Daley, 58 Ill.2d 1, 317 N.E.2d 22. In Cummings, the Chicago Fair Housing Ordinance had incorporated the Administrative Review Act of Illinois in a provision almost identical to the provision now before us in the Evanston Fair Housing Ordinance, However, again, the court invalidated that provision, holding that the city did not have the power to choose the particular method of judicial review of its administrative agencies.

It is clear that if the home-rule provisions of the Illinois Constitution did not grant the necessary power to the city of Chicago to choose a particular method of judicial review, neither did the city of Evanston have the necessary power to do so. In Cummings the court invalidated a provision strikingly similar to the provision before us. We have no alternative but to do likewise.

However, although the section in the Evanston ordinance conferring jurisdiction in the circuit court through the Administrative Review Act was invalid, it does not necessarily follow that the circuit court was without jurisdiction. The Administrative Review Act did not expand the subject matter jurisdiction of the circuit courts. Circuit courts have historically had jurisdiction to review administrative decisions as provided by law. (Ill. Const. (1870), art. VI, § 9; Ill. Const. (1970), art. VI, § 9.) The purpose of the Act was to dispense with the use of mandamus, certiorari, injunction and other actions as a means of reviewing the decisions of administrative agencies, and thus to provide a single uniform method of review. (People ex rel. Builders Supply & Lumber Co. v. Village of Maywood, 22 Ill.App.2d 283, 160 N.E.2d 689.) The Administrative Review Act provides a simple single procedure for a review from specified administrative decisions, but it was not intended to be a trap for the unwary or to establish a bar to relief. (Chestnut v. Lodge, 34 Ill.2d 567, 216 N.E.2d 799.) It thus appears that the Administrative Review Act did not change or expand the subject matter jurisdiction of the circuit courts; it merely provided a single vehicle for the exercise of that jurisdiction in specified cases.

Consequently, the instant facts do not present a lack of subject matter jurisdiction, but rather, the utilization of the improper vehicle for exercising that jurisdiction. As the cases decided before enactment of the Administrative Review Act make clear, the proper method for review of administrative decisions was by writ of certiorari. (People ex rel. Elmore v. Allman, 382 Ill. 156, 46 N.E.2d 974.) And although the Administrative Review Act has replaced certiorari for review of State administrative agencies, it appears certiorari has remained the appropriate method for review of municipal administrative agencies. In view of the foregoing principles, two possible dispositions of the instant case emerge: (1) a remand of the instant case so that plaintiffs may petition the circuit court for a writ of certiorari, or (2) that this com! view the instant record as though a writ of certiorari had already been granted. However, after a review of the law applicable in a certiorari proceeding, we conclude that a remand of the instant case would serve no useful purpose, and accordingly, we will view the instant case as though certiorari had been granted by the circuit court.

The procedure for judicial review of administrative decisions by way of certiorari is not unlike the procedure for review by way of the Administrative Review Act. In a certiorari proceeding, the relevant records of the administrative agency are brought before the court. The record must show that the agency acted upon evidence, and it must contain the testimony upon which the decision of the agency was based. (Carroll v. Houston, 341 Ill. 531, 173 N.E. 657.) The trial is to consist only of an inspection of the records of the agency. (Goodfriend v. Board of Appeals, 18 Ill.App.3d 412, 305 N.E.2d 404.) In such proceedings, the court cannot consider any matter not appearing of record. (People ex rel. Nelson Brothers Storage & Furniture Co. v. Fisher, 373 Ill. 228, 25 N.E.2d 785.) The only province of the trial court is to consider the record and ascertain whether the agency had jurisdiction, whether it exceeded its jurisdiction, whether it proceeded according to law and acted on evidence, and whether there is anything in the record which fairly tends to sustain the action of the agency. Where the agency is not arbitrary in its findings and there is evidence in the record of its proceedings which fairly tends to support the finding, a reviewing court is not justified in substituting its judgment for the discretion and judgment of the agency. (Prendergast v. Retirement Board, 325 Ill.App. 638, 60 N.E.2d 768.) In such cases the question before the court is never whether the agency’s decision is wise or discreet, but only whether there is any evidence fairly tending to support the order reviewed. Mayor v. Dean, 62 Ill.App. 41; Superior Coal Co. v. O’Brien, 383 Ill. 394, 50 N.E.2d 453.

In view of these principles, it is clear that no useful purpose would be served by a remand of the instant case for the issuance of a writ of certiorari. The circuit court could consider no additional testimony or record than that which is before this court. Similarly, neither the circuit court nor this court should weigh the evidence, draw inferences of fact, or substitute its judgment for that of the administrative agency. As set out above, the role of a reviewing court in a certiorari proceeding is limited and clearly defined. Since the circuit court would be in no more advantageous position to review this record than this court already is, we will consider the record as though certiorari had been granted by the circuit court. Cf. Mandis v. Gorski (1965), 24 App.Div.2d 181, 265 N.Y.S.2d 210.

It must be emphasized that the procedural facts presented by this case are highly unusual. Until the supreme court decided Paper Supply Co., the use of the Administrative Review Act by municipal administrative agencies had not been questioned by either the courts or the members of the bar. The litigants in the instant case cannot be faulted for not having anticipated the holding in Paper Supply Co. To now require these parties to return to the circuit court and start the litigation anew would be unduly harsh and, in view of the reasons above, unneeded. To require these parties to commence a new action merely to put a different label on the record already before us would elevate the technical subtleties of pleading to a degree far greater than that required to maintain an orderly system of justice and would result in unneeded delay and expense. Instead, this court will apply the fundamental principle that courts should consider the substance of litigation and not the form. In so doing, effect will be given to the dictates of the Civil Practice Act that require the rules of civil practice to “be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1973, ch. 110, § 4.) We conclude that substantial justice for all parties requires such a disposition and accordingly, will review the Board’s order under the certiorari principles set out above.

We now turn to the merits of the instant appeal. Plaintiff Quinlan and Tyson is a corporation engaged in the real estate business in the City of Evanston and elsewhere in the Chicago area. Plaintiff Jody Taylor was a sales representative employed by Quinlan and Tyson at their Winnetka, Illinois, office. The Evanston Human Relations Commission filed a complaint with tire Evanston Fair Housing Review Board (Board) against plaintiffs alleging the violation of four sections of the Fair Housing Ordinance of the City of Evanston. At a hearing on the complaint, the Board heard the testimony of two witnesses.

Joanne Eannarino testified that at the request of the Evanston Human Relations Commission she went to the Winnetka office of Quinlan and Tyson to find out whether or not white people would be shown Evanston property if they went looking in other areas of the North Shore. At the Winnetka office, she was referred to plaintiff Jody Taylor, and told Taylor she had two young children and was interested in houses for sale in the $35,000 to $40,000 range with three or four bedrooms in communities with good schools. She also informed Taylor that she was- completely unfamiliar with the North Shore area. Taylor took out a map of the immediate area and began describing the different communities. Eannarino then mentioned that, although- Evanston was named at the bottom of the map, it was not part of this particular map. Taylor then commented that there are problems with a young family buying in Evanston because they would probably want to move in a few years and property is hard to sell in certain areas of Evanston. She explained that it was hard to sell because there were “coloreds living in the area.” Eannarino said nothing in response, and the meeting continued. Taylor then gave Eannarino a series of multiple-listing books. The first books contained Winnetka, Wilmette, and Glencoe. While they paged through the books, Taylor mentioned that there was only one black family in Kenilworth, three black families in Wilmette, and that all the black families in Glencoe live in one area. Although Eannarino did not request it, the last multiple listing book given her was of Evanston. While looking through the Evanston book, Eannarino found an 11-room house for $20,000. She told Taylor, “This is really a buy.” Taylor responded, “I don’t think you’d be interested in it. That is in the colored area of Evanston.” However, again Eannarino made no response and did not inquire further about the house. At other points in the conversation, Taylor said there are two nice areas of Evanston; the other areas are where the colored live. Finally, at the end of the 1%-hour visit, Eannarino asked where the colored area of Evanston was located. Taylor replied, “In the southwest part.” That was the only time Eannarino had asked any questions regarding racial characteristics of the communities. As Eannarino was leaving the office, Taylor gave her a list of houses she could drive by, and if interested in any of them, Taylor would arrange an appointment to see them further. On cross-examination, Eannarino admitted she didn’t ask to see any particular houses nor did she ask to see any particular listings. She also stated that the Winnetka office of Quinlan and Tyson was in the middle of the map she was shown and she wasn’t surprised Evanston was not on that map.

Jody Taylor also testified before the Board. She had been a sales representative for 15 years and was merely trying to meet Eannarino’s needs. When Eannarino mentioned the $20,000 house in Evanston she said, “I don’t know the house. I do know the area. That is an over-. crowded area because there are apartments. And the houses are near together. And I wouldn’t think a young couple with two childen would want to come in that area.” However, she admitted that she also said it was an integrated area. In response to a question from a member of the Board as to why Taylor mentioned the integrated area and why she just didn’t offer to show the house. Taylor responded:

“I did tell her I would take her out. I told her that. I told her to come with her husband and I even told her she could bring her children and we would look at anything she wanted to see.”

In response to another question from the Board, Taylor stated she did not include the $20,000 house on the list of houses to drive by because it was in a congested area. The houses listed were not in crowded areas. Taylor claimed that she did not try to steer Eannarino away from Evans-ton and pointed out that of the four houses she asked Eannarino to drive by, two were in Evanston. On cross-examination, it was elicited that although Eannarino never raised the racial characteristics of an area until the end of the visit, she also never said she wanted to live in an integrated area. Taylor explained that the reason Eannarino was given the Evanston multiple-listing book last was because it was only natural for the Winnetka office to show homes in the Winnetka area first. She reasoned that if Eannarino wanted to live specifically in Evanston, she would have gone to the Quinlan and Tyson office in Evanston.

The Board subsequently issued a written report containing certain “findings.” Although no specific sections of the Fair Housing Ordinance were mentioned, the Board concluded that plaintiffs were guilty of discriminatory practices in violation of the ordinance, and fines were levied.

On a complaint for administrative review, the circuit court found that the Board’s findings were contrary to law and against the manifest weight of the evidence, and that the Board should have dismissed the complaint of the Human Relations Comission for its failure to serve a copy of the complaint on the persons charged within 5 days after the filing of the complaint. On those grounds, the circuit court set aside the decision of the Board. We now review that order, although under the admittedly more limited scope of certiorari review.

Defendants raise two issues on appeal: (1) whether the Board was required to dismiss the complaint for failure to serve a copy of the complaint within the required time, and (2) whether the decision of the Board was against the manifest weight of the evidence.

The complaint was filed by the Human Relations Commission on May 30, 1972. Although the record is far from clear, it appears that a copy was sent by certified mail to plaintiffs on June 5, 1972. The ordinance requires service of a copy of the complaint personally or by certified mail within 5 days. (Evanston, Ill., Code 1970, ch. 25½, § 25½ — 17.) The circuit court found, and plaintiffs now argue, that the interval of 6 days between filing and mailing of the complaint required dismissal of the complaint.

Defendants argue that although the 6-day interval would seem to be in contravention of the ordinance, plaintiffs have waived any possible irregularity. The complaint was mailed to plaintiffs on June 5, 1972. However, plaintiffs motion to dismiss the complaint based on this irregularity was not received by the Board until October 27, 1972, and was not argued and decided until November 2,1972. In the interval, plaintiffs not only filed an answer to the complaint, but over a 5-month period participated in efforts to conciliate the complaint. The answer did not in any respect challenge the late service of the complaint, nor was this defect raised during the conciliation efforts. It thus appears that plaintiffs not only delayed over 4 months in complaining of the alleged defect but that they actively participated in the prior litigation of the complaint. We conclude that plaintiffs’ delay coupled with their participation in the case constituted a waiver of any possible defect in service of the complaint. See Lovell v. Hastings, 11 Ill.App.3d 221, 296 N.E.2d 608; Pocahontas Mining Co. v. Industrial Com., 301 Ill. 462, 134 N.E. 160.

However, even if plaintiffs had properly preserved their objection for review, the Board was not required to dismiss the complaint. Although the ordinance states that service must be made within 5 days, the ordinance does not indicate nor do plaintiffs cite any authority for the proposition that the requirement is jurisdictional. Such a provision can be called jurisdictional when the language is mandatory, and in that case any subsequent acts would be void unless the requirement had been fulfilled. However, such language can also be directory, and in that case failure to comply with the requirement would not render subsequent proceedings void. Determining whether a provision is mandatory or directory is largely a matter of ascertaining legislative intent. The court in Carrigan v. Illinois Liquor Control Com., 19 Ill.2d 230, 166 N.E.2d 574, noted the difference betwen provisions intended to guide public officers in the conduct of their business and those provisions negative in character which suggest that an act cannot be done unless within the required time. We feel the instant provision falls within the former category. It seems clearly to be one designed to secure order, system, and dispatch in proceedings. It is not of the type used to determine legal rights, but merely to indicate that certain things be done in a given way at a certain time. (In re Annexation of Certain Territory to the City of Darien, 16 Ill.App.3d 140, 304 N.E.2d 769.) And as noted above, there is no declaration in the ordinance itself that conformity to this provision is essential to the validity of subsequent proceedings under the ordinance. Indeed, the ordinance declares that it should be liberally construed so as to achieve its purpose of providing an equal opportunity to all persons in the purchase and renting of real estate. Evanston, Ill., Code 1970, ch. 25½, § 25½ — 3.

A factor to be considered when giving such language a directory construction is whether that interpretation may result in any injury to an individual or to the public generally. (People ex rel. Landwehr v. Humbracht, 215 Ill.App.29.) In the instant case the ordinance requires the Board to “promptly” hold a hearing if conciliation cannot resolve the complaint within 14 days. (Evanston, Ill., Code 1970, ch. 25%, § 25% —17.) Thus, the ordinance implicitly infers that any person charged under the ordinance would have notice of the complaint due to the attempt at conciliation, regardless of a formal receipt of the complaint. Moreover, that same section of the ordinance requires the Board to give “due and reasonable notice to all parties” of the hearing once conciliation has failed. Thus any individual charged under the ordinance would have ample notice of the complaint even if the 5-day requirement was not strictly met. That this is true is borne out by the record below. At no time during the hearing before the Board, or at the hearing in the court below, or in the briefs filed in this court have plaintiffs claimed any injury or prejudice due to the late receipt of the complaint. It is also clear that there will be no injury to the public generally by such a construction that the language is directory. Rather, such a construction would only benefit the public by insuring their right to demand redress for any discrimination in housing. After considering the intent of the city council as evidenced by the apparent purpose of the provision, the possible injury to any individual, and the possible benefit to the public generally, we hold that the language of the provision is directory rather than mandatory. Accordingly, the Board was not required to dismiss the complaint.

The second issue raised by defendants is whether there was insufficient evidence to sustain the Board’s decision. When review is by writ of certiorari, as in the instant case, the cases uniformly hold that the standard to be applied is whether there is any evidence in the record reasonably tending to sustain the decision of the Board. (O’Brien v. Retirement Board, 343 Ill.App. 630, 99 N.E.2d 681.) In a common-law writ of certiorari proceeding the reviewing court has no power to weigh the evidence and is not justified in substituting its judgment for the discretion and judgment of the agency. (Byrnes v. Retirement Board, 339 Ill.App. 55, 89 N.E.2d 59; Prendergast v. Retirement Board, supra.) The complaining party does not have an opportunity to have the case retried; if there is any evidence which fairly tends to sustain the Board’s decision, it cannot be disturbed. (People ex rel. Fosse v. Allman, 329 Ill.App. 296, 68 N.E.2d 203.) It is with this limited role of the reviewing court in mind that we now turn to the Board’s decision.

The complaint filed with the Board by the Evanston Human Relations Commission alleged the violation of three sections of the Evanston Fair Housing Ordinance. The Board’s written report did not refer to any specific section of the ordinance. Instead, after making findings of fact, the report merely concluded that plaintiffs engaged “in discriminatory practices in violation of the” ordinance. On appeal, three sections have been advanced to sustain the Board’s action.

Two of those sections provide that it shall be unlawful to:

“Refuse to show real estate because of the race, color, religion, or national origin of any prospective purchaser, lessee, or tenant, or because of the race, color, religion, or national origin of the residents in the area in which the property is located. (Evanston, Ill, Code 1970, ch. 25½, § 25½ — 6(j),)
Fail to show real estate because of the race, color, religion, or national origin of any prospective purchaser, lessee, or tenant, or because of the race, color, religion, or national origin of the residents in the area in which the property is located.” (Evanston, Ill, Code 1970, ch, 25%, § 25% — 10(1).)

Defendants contend that these two sections taken together prohibit what is commonly called “steering” that is, an attempt to guide white buyers away from housing in a black or integrated area.

Defendants argue that the whole tenor of Taylor’s comments was to steer Eannarino away from Evanston. They specifically note the comments that property is hard to sell in Evanston, that only two sections of Evanston are nice, that there are only a small number of black families in other suburbs, and that Eannarino would not be interested in the $20,000 house because it is in an integrated area.

However, defendants fail to note the clear language of the ordinance. The ordinance prohibits the refusal to show or the failure to show. They do not, even when taken together, prohibit steering. The language used is plain and unmistakable. In the absence of a different legislative intent, courts will assume that such words have their ordinary and popularly understood meaning. (People v. Blair, 52 Ill.2d 371, 288 N.E.2d 443.) Defendants ask this court to consider both sections and declare that together they prohibit steering. However, it is settled law that the courts can neither restrict nor enlarge the plain meaning of an unambiguous statute. Bovinette v. City of Mascoutah, 55 Ill.2d 129, 302 N.E.2d 313.

The sections before us do not prohibit discouraging prospective purchasers of real estate (see State v. Wagner (1972), 15 Md. App. 413, 291 A.2d 171), nor do they prohibit hindering prospective purchasers. The sections plainly prohibit the refusal or failure to show real estate. Such language implicitly requires at least a request to see property before there can be a refusal or failure to show that property. In State v. Wagner, supra, the court was faced with a statute that prohibited steering as defined by defendants. In that case, a Maryland statute made it unlawful to discourage another person from purchasing real property, by representations regarding the existing or potential proximity of real property owned, used, or occupied by persons of any particular race, color, religion, or national origin, or to represent that such existing or potential proximity will or may result in: 1. the lowering of property values * * *. (Md. Ann. Code 1972, art. 56, § 230A.) The difference between the Maryland statute, clearly designed to prohibit steering, and the one presently before us is obvious.

Another case which highlights the difference between what Evanston prohibited and what Evanston could have prohibited is Zuch v. Hussey (E.D. Mich. 1973), 366 F.Supp. 553, where steering was held to be a violation of section 3604(a) of the Fair Housing Law (42 U.S.C. § 3604(a) (1973)). Section 3604(a) made it unlawful:

“To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.”

However, after defining steering as any word or action by a real estate broker or salesman which is used to influence the choice of a prospective homebuyer on a racial basis, the court concluded that the specific prohibitions “to refuse to sell or rent” and “to refuse to negotiate” were insufficient to include a prohibition of steering. Instead, the court relied on the general prohibition to “otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.” While the court in Zuch could point to language “as broad as Congress could have made it,” we cannot point to such language in the sections of the Evanston ordinance advanced to support the convictions. We agree with the court in Zuch that the specific prohibitions “to refuse to sell or rent” and “to refuse to negotiate” are “applicable in unmistakable circumstances.” And it is for just that reason that we cannot now hold that the specific prohibitions in the Evanston ordinance also prohibit steering.

The act of discouraging a prospective purchaser and the act of refusing or failing to show a prospective purchaser real estate are separate and distinct acts. The Evanston city council chose to prohibit the latter; this court cannot now change the plain meaning of the ordinance to prohibit steering. We emphasize that we do not reach the question whether Taylors conduct would violate such a provision had the city of Evanston seen fit to enact one. We merely hold that those sections of the Evanston ordinance advanced to support the present convictions, even when taken together, do not prohibit steering.

We now turn to whether Taylor’s conduct constituted a refusal or failure to show real estate. The plain meaning of the word “refused” indicates a prior request by another. Similarly, the plain meaning of the word "failed” indicates some act of omission, something left undone. In tire instant case, after a careful review of all the testimony, we can find no evidence of either a refusal or failure to show real estate on the part of Taylor.

Eannarino admitted that she never asked to see any particular house. Indeed, she never even asked to see the Evanston multiple-listing book. Defendants argue that Taylor’s comment, “I don’t think you’d be interested in it. That is in the colored area of Evanston,” can be construed as an outright refusal. Defendants suggest the clear implication was that Taylor would not show that house. However, defendants fail to note that Eannarino never asked to see that house. She merely said, “This is really a buy.” Such a comment cannot possibly be interpreted as a request to see that house. Moreover, Eannarino said nothing in response to Taylor’s comment. She did not in any way indicate a desire to see the house despite the fact that it was in a black area. Not once in their 1%-hour conversation did Eannarino ask to see any house or listing. Neither did she express any dissatisfaction with what she was shown. Although Taylor’s comment might possibly constitute discouragement, since Eannarino never made a request, there can be no refusal. See Bell Realty & Insurance Agency v. Chicago Commission on Human Relations, 130 Ill.App.2d 1072, 266 N.E.2d 769.

Similarly, there was never a failure to show real estate. Eannarino was given the listing books for Evanston even though she never requested them and even though Evanston was two suburbs away. As Eannarino was leaving, Taylor gave her four homes to drive by, all of which fit the type of home Eannarino had asked for, and two of which were in Evans-ton. Although the $20,000 home was not on the list, Eannarino had seen the listing and could easily have asked to see it, but didn’t. Finally, Taylor offered to let her see anything she wanted to. It is difficult to imagine what else Taylor could have done.

In addition to the affirmative actions taken by Taylor, there is no evidence in the record of any available housing that was kept hidden from Eannarino, the usual purpose of a “failure to show” ordinance. Eannarino admitted that she was given the listing books for all the surrounding suburbs, including Evanston, and was allowed an opportunity to look through them herself.

We conclude that there was no evidence to support any finding by the Board that plaintiffs refused to show real estate or failed to show real estate.

Finally, we tmn to the last section of the ordinance advanced to support the Board’s finding. Section 25V2 — 6(f) makes it unlawful to:

“Make any misrepresentations concerning the listing for sale or the anticipated listing for sale or the sale of any real property for the purpose of inducing or attempting to induce the sale or listing for sale of any real property by representing that the presence or anticipated presence of persons of any particular race, color, religion, or national origin in the area will or may result in the lowering of real property values in the block, neighborhood, or area in which the property is located.” (Evanston, Ill., Code 1970, ch. 25½, § 2572 — 6(f).)

That section is generally agreed to be the “anti-blockbusting” section of the ordinance. It seeks to prohibit the practice of soliciting sales of residential property on grounds of the future loss of value of the properties due to a prospective or present entry into the neighborhood of homeowners of a different race or origin.

There is again no evidence to support a finding of a violation based on this section. This section is concerned with inducing the sale of property. Eannarino wanted to buy property. This section declares it unlawful to make any misrepresentation concerning the sale of the real property. Again, there was neither any misrepresentation nor any attempted sale. The section is obviously intended for the protection of homeowners. But again, Eannarino was a buyer, not an owner.

That this section is not applicable was conceded by defendants during the hearing before the circuit court. Now on appeal, defendants contend that the section does apply. Defendants argue that Taylor was attempting to sell real estate in other areas of the North Shore by representing that property in Evanston is harder to sell because there are blacks living there. We reject such a strained reading of the ordinance. The ordinance makes it unlawful to malee representations about the area in which you want someone to sell — not some other area as argued by defendants. Moreover, there was no testimony that Taylor predicted that property values would go down, as required by the ordinance. Finally, as mentioned above, it is agreed by all that this is a “blockbusting” statute, and there is absolutely no evidence that Taylor was engaged in any such activity.

We note that this exact same fact situation was presented in Abel v. Lomenzo (1966), 25 App.Div.2d 104, 267 N.Y.S.2d 265, aff'd, 18 N.Y.2d 619, 219 N.E.2d 287. In that case, the court similarly rejected the contention that advising prospective purchasers of the racial composition of various neighborhoods violated a New York blockbusting statute. We conclude that none of Taylor’s comments constituted a violation of the blockbusting section of the ordinance.

It must be emphasized that we intimate no opinion on the validity of an antisteering statute, nor on the validity of an ordinance that prohibits real estate brokers from informing prospective purchasers of real estate of the racial composition of areas in which they express an interest. We merely hold that there was no evidence which reasonably tends to support violations of the three sections of the ordinance advanced.

Accordingly, the decision of the circuit court setting aside the decision of the Fair Housing Review Board is affirmed.

Affirmed.

LEIGHTON and HAYES, JJ., concur.

       Neither Cummings nor Paper Supply Co. indicate the proper disposition of a pase once the Administrative Review Act has been found inapplicable. In neither pase was the court presented with facts requiring such disposition. Paper Supply Co. was an action for declaratory judgment in which no administrative decision was being challenged. In Cummings, the plaintiff had inexplicably already chosen to proceed by way of certiorari rather than the Administrative Review Act.

       We note that although both parties urged this court to disregard Cummings and Paper Supply Co. and reach the merits of this case, we cannot disregard decisions of the Supreme Court -and are considéring the merits of this case only because Cammings and Paper Supply Co. do not preclude such a consideration.

       We are aware of our colleagues’ contrary holding in Nowicki v. Evanston Fair Housing Review Board, 25 Ill.App.3d 129,-N.E.2d-, and respectfully differ.

       The Board specifically found no violation of one section of the ordinance. The propriety of that finding has not been questioned and is therefore not before the court.

       Although the court’s order concluded that the Board’s findings were against the manifest weight of the evidence, the trial judge during the hearing on the complaint several times referred to the fact that there was “no" evidence to support the findings. Accordingly, it is not unreasonable to assume that even under the more limited standard of review for certiorari, the trial judge would have quashed the Board’s return.

       Which we take to mean: whether there was any evidence which fairly tends to support the Board’s decision.

       It was been extremely difficult to determine when letters or pleadings were sent or received. It seems the Board does not time stamp material at its receipt. This difficulty has been compounded by the different dates mentioned at the hearing before the Board, in the briefs filed in this court and the occasional notation, made by hand on the pleadings in the record.


author: Mr. JUSTICE McNAMARA

text:
    Frances S. Riley, Plaintiff-Appellant, v. Unknown Owners of 304 North Oak Park Avenue Building, Oak Park, et al., Defendants-Appellees.
    (No. 60224;
    First District (3rd Division)
    January 23, 1975.

      Modified opinion upon denial of rehearing filed March 6, 1975.

      William E. Riley, of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton, Harold W. Huff, and Barry G. Bollinger, of counsel), for appellees.
   Mr. JUSTICE McNAMARA

delivered the opinion of die court:

Plaintiff, Frances S. Riley, filed an action in the circuit court of Cook County to recover damages for personal injuries suffered in a fall on an outside step of an apartment building in which she was a tenant. Joined as defendants were Dolores Thorsness, as administrator of the estate of Lionel Thorsness, deceased, the owner of the building; Henry W. Drift-man, contract purchaser of the building; Homeowners Realty Company, a company owned by Driftman; and Gino Rocconi, the building janitor. At the close of plaintiff’s case, the trial court granted Thorsness’ motion for a directed verdict. At the close of all the evidence, the court granted motions for directed verdicts in favor of Driftman and Homeowners. A jury then returned a verdict against Rocconi with damages assessed at $25,000. Judgment was entered on the verdict, and plaintiff’s post-trial motion to set aside the directed orders in favor of the other defendants was denied.

After the trial court’s denial of plaintiff’s post-trial motion but prior to her filing of a notice of appeal, Rocconi tendered to plaintiff the amount of damages assessed. When plaintiff refused to accept the money, Rocconi deposited the funds with the clerk of the court and moved the trial court for satisfaction of judgment. The trial court entered an order directing the clerk to hold the funds pending the outcome of this appeal.

Plaintiff contends that the trial court erred in directing verdicts in favor of Thorsness and Driftman. She argues that the evidence adduced at trial was sufficient to create a jury question as to Driftman’s liability as a joint tort-feasor or his derivative responsibility as Rocconi’s principal. Defendants’ response has been that all the issues in the case are moot since Rocconi’s tender of the amount owed constituted simultaneously a satisfaction of his judgment and release of the other defendants.

We initially observe that plaintiff does not contest the order of the court directing Homeowners out of the case or the jury’s verdict and assessment of damages against Rocconi. These judgments therefore are presumed to be correct. Weaver v. Bolton (1965), 61 Ill.App.2d 98, 209 N.E.2d 5.

We next note that plaintiffs request to reverse the order entered in favor of Thorsness is not supported by argument in her brief. Such failure to raise and argue points in her brief serves to waive any error in respect to such order for purposes of review. Ill. Rev. Stat. 1973, ch. 110A, par. 341(e)(7).

Thus the only remaining issue concerns the propriety of the court’s action in directing a verdict in favor of Driftman. In considering that question, we will assume that Rocconi’s tender of the amount of the judgment awarded against him did not constitute a satisfaction of the judgment.

Plaintiffs argument that there was a jury question as to whether Drift-man was a joint tort-feasor in this occurrence is belied by the allegations of the complaint and the evidence brought out at trial. The complaint does not allege any negligence on the part of Driftman, the contract purchaser, in hiring or supervising the work of Rocconi. No concerted actions were alleged involving Driftman and Rocconi, and no concurrent and independent wrong can be discerned from the activities of Driftman which together with Rocconi’s wrongs produced an indistinguishable injury to plaintiff. Indeed, even if the averments can be perceived to state a marginal action based upon joint tort-feasor law, a careful reading of the record unmistakably shows that the evidence at trial was aimed at establishing Driftman’s liability in a derivative capacity. Thus, it appears to us that any proper imposition of liability upon Driftman based upon the evidence adduced at trial would have been founded upon derivative liability such as principal-agent or master-servant. See Baldwin v. Wiggins (Ky. App. 1956), 289 S.W.2d 729; Betcher v. McChesney (1917), 255 Pa. 394, 100 A. 124.

Plaintiff apparently seeks reversal of the trial court’s judgment in order to obtain a retrial against Driftman on the same facts and to obtain damages greater than those established by the jury in the Rocconi trial. This was borne out by plaintiffs counsel at oral argument. Therefore, we conceive the real issue to be as follows: If the trial court erred in directing a verdict in favor of Driftman and if plaintiff were permitted to proceed against Driftman on the same facts established in the present case in order to prove his derivative liability in the matter, would plaintiff have the right to establish her damages in an amount greater than $25,000?

The doctrine of res judicata is that once a final judgment is rendered by a court of competent jurisdiction, such judgment must be deemed conclusive as to all rights of the parties and their privies regarding questions actually litigated and those which might have been in a subsequent action on the same cause of action. (Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 186 N.E. 152.) A branch of res judicata, referred to as estoppel by verdict or collateral estoppel, provides the same conclusive effect when the same parties or their privies are involved with the same issues actually or necessarily finally determined by a court of competent jurisdiction in an earlier, but different, cause of action. Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723.

The requirement that both parties in the subsequent suit be identical or be privies to the ones in the earlier suit for the application of collateral estoppel has been grounded on the notion of mutuality. This concept permits one party to employ the doctrine for his benefit and thereby bind the opposing party only if the asserter himself would have been bound had the original decision been to the contrary. The rigidity of the identical-parties mutuality-of-estoppel rule has led our courts to attempt to alleviate its harsh effect in certain situations. It has been held that a particular issue could not be relitigated because the plaintiff in the second suit was the same “in effect” as the one in the earlier suit. (People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.) An exception to the identical-parties requirement has been carved out in the case of a plaintiff attempting to hold one derivatively liable after the same plaintiff or his privy has failed in a prior suit to establish the culpability of the immediate actor. Since the precise issue actually decided in the first case was involved in the second, plaintiff would be estopped from re-litigating the issue of the active participant’s liability. Voss Truck Lines, Inc. v. Pike (1953), 350 Ill.App. 528, 113 N.E.2d 202.

The logical counterpart to the above-stated exception to the identical-parties rule occurs when the same plaintiff who has been awarded compensatory damages in an action against the active tort-feasor later sues on the same facts to hold another defendant derivatively liable. The majority and better-reasoned rule is that the plaintiff can be estopped in the second suit from recovering damages greater than those awarded in the prior suit. See Blue Valley Creamery Co. v. Cronimus (1937), 270 Ky. 496, 110 S.W.2d 286; Pinnix v. Griffin (1942), 221 N.C. 348, 20 S.E.2d 366; Betcher v. McChesney, supra.

In the present case plaintiff has fully litigated her cause of action. A jury has determined that plaintiff has suffered damages in the amount of $25,000. She has not chosen to appeal that judgment as being inadequate. Consequently, were plaintiff now permitted to sue Driftman to establish his derivative responsibility in this matter, obviously she would be confronted with the fact that damages have been determined and that the amount awarded must be the limit in the new trial. The identical issue of damages, once fully and fairly litigated, should not be relitigated.

Finally, plaintiff would be unable to escape this estoppel effect even if on retrial she were able to sue Driftman on the basis of joint tort-feasor law. The recent trend in the law in this area is to discard the identical-parties — mutuality rule entirely and to require that only one party or his privy, the one against whom estoppel is attempted to be used, be identical in the second action, especially when estoppel is urged defensively. (See Bernhard v. Bank of America (1942), 19 Cal.2d 807, 122 P.2d 892; Federal Savings & Loan Insurance Corp. v. Hogan (7th Cir. 1973), 476 F.2d 1182; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (1971), 402 U.S. 313.) These courts hold that the only pertinent questions for the utilization of collateral estoppel are whether the issue decided in the prior adjudication is identical with the one presented in the suit in question, whether there had been a final judgment on the merits, and whether the party against whom estoppel is asserted is a party or in privity with a party to the prior adjudication. Since Illinois has adopted this modern approach (Chidester v. Cagwin (1966), 76 Ill.App.2d 477, 222 N.E.2d 274; Lynch v. Chicago Transit Authority (1965), 62 Ill.App.2d 220, 210 N.E.2d 792; Franciscy v. Jordan (1963), 43 Ill.App.2d 344, 193 N.E.2d 219; but see In re Hutul (1973), 54 Ill.2d 209, 296 N.E.2d 332, cert. denied (1973), 414 U.S. 1040), plaintiff would be unable to obtain damages in excess of those finally and conclusively determined in her earlier trial.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Thurston, Jr., Defendant-Appellant.
    (No. 59399;
    First District (5th Division)
    January 24, 1975.

      Opinion modified upon denial of rehearing March 4, 1973.

      Paul Bradley and James R. Streicker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant withdrew a plea of not guilty to murder. He then pled guilty to involuntary manslaughter and was sentenced to 3 to 9 years. On appeal, he contends he was not properly admonished as required by Supreme Court Rule 402. (Ill. Rev. Stat. 1973, ch. 110A, par. 402.) Specifically, he argues the trial court failed (1) to determine that his plea was voluntary and not the result of force, threats or promises apart from the plea agreement; (2) to inform him of the nature of the charge and determine that he understood it; and (3) to state the terms of the plea agreement in open court and confirm them by personally questioning him in open court.

Opinion

Defendant initially argues the trial court merely asked him if he wished to plead guilty and made no inquiry concerning voluntariness, force, threats or promises and thus did not substantially comply with the dictates of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, or with the requirements of Illinois Supreme Court Rule 402.

In Boykin it was held that the record must disclose a guilty plea was voluntarily and understandingly made. In implementation thereof, Rule 402 was adopted, which in pertinent part provides:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
# # *
(b) Determining Whether the Plea Is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.” 50 Ill.2d R. 402.

The purpose of Rule 402 is to safeguard the rights of an accused by assuring that a guilty plea is intelligently, understandingly and voluntarily made. (People v. Campbell, 13 Ill.App.3d 237, 300 N.E.2d 568.) However, substantial compliance will satisfy the purposes of the Rule. People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30.

Here, following a conference with defendant’s attorney, the prosecutor informed the court that the State wished to proceed on the charge of involuntary manslaughter, and the following colloquy then occurred:

“The Court: Very well. Mr. Thurston, your counsel advises me you wish to change your plea of not guilty and plead guilty to the charge of involuntary manslaughter, is that correct?
Defendant: Yes.
The Court: When you plead guilty you automatically waive your right to a jury trial or a bench trial or your right to be confronted by witnesses, do you understand that?
Defendant: Yes.
The Corut: Before accepting your plea of guilty it is my duty to advise you on your plea of guilty to involuntary manslaughter, both under the new unified Code and under the statute in existence on the date of this occurrence, sentence could not be less than one nor more than ten years on involuntary manslaughter, do you understand?
Defendant: Yes.
The Court: Let tire record show the defendant has been advised of the consequences of a plea of guilty to this indictment and at this time I will hear stipulations.”

In People v. Ellis, 59 Ill.2d 255, 320 N.E.2d 15, where the trial court failed to specifically ask whether any force, threats or promises were used to obtain the plea, it was stated at page 257:

“While we do not approve of any failure to comply strictly with the explicitly stated requirements of Rule 402, it does not follow that every deviation therefrom requires reversal. If upon review of the entire record it can be determined that the plea of guilty made under the terms of a plea agreement was voluntary, and was not made as the result of force, threats or promises other than the plea agreement, the error resulting from failure to comply strictly with Rule 402(b) is harmless.”

A trial judge is not required to ask questions of a defendant phrased in the specific language of Rule 402. (People v. Anderson, 10 Ill.App.3d 558, 294 N.E.2d 763.) In People v. Campbell, 13 Ill.App.3d 237, 300 N.E.2d 568, it was held that the trial judge need not ask defendant whether his plea was induced by force or threats where the record otherwise shows the plea was voluntarily made.

Here, the record discloses defendant conferred with his privately retained counsel and then acknowledged to the court his desire to change his plea of not guilty to murder to gufity of involuntary manslaughter. He understood this plea was a waiver of his right to a trial by jury and of his right to be confronted with witnesses to testify against him. In addition, he was informed as to and indicated his understanding of the possible minimum and maximum sentences that could be imposed.

In view of the above and from our further consideration of the entire record, we believe that there was substantial compliance with the requirement of Rule 402 that the plea was voluntarily made.

Defendant maintains also that the trial court accepted his plea of guilty without first informing him of the nature of the charge and determining that he understood it.

After defendant expressed his desire to plead guilty to involuntary manslaughter and after he was informed of the rights he was waiving and the sentences that could be imposed, the following colloquy occurred in the presence of defendant and his attorney:

“The Court: Let the record show that defendant has been advised of the consequences of a plea of guilty to this indictment and at this time I will hear stipulations.
Mr. Fitzgerald [assistant State’s attorney]: Your Honor, at this time, it would be stipulated by and between James Thurston in his own proper person, through Ronald Blair, Iris attorney, now present in open court, with Bernard Carey, state’s attorney of Cook County, through two of his assistants, that on the 23rd of August, 1972, approximately 3:40 p.m., at or near 1342 North Cleveland on the third floor, that address being located in the City of Chicago, County of Cook, State of Illinois, the defendant James Thurston was at that time living with his wife, Marlene Thurston. Mr. Thurston had occasion to return to their common home at approximately that time; soon thereafter a disagreement began and while struggling with a gun Mr. Thurston had occasion to shoot and kill Marlene Thurston. There was later found to be a fingerprint on the gun of Mr. Thurston, which would establish that Mr. Thurston did indeed fire the gun. However, due to the circumstances we feel that it is appropriate that the charge become involuntary manslaughter. The State stands willing and réady to produce other evidence that would establish guilt of the defendant both in fact and law beyond a reasonable doubt.”

In People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, there was a recital in the trial court by tire prosecutor of the stipulated evidence which set forth the nature of the criminal conduct the State expected to prove. Neither defendant nor his attorney objected to any portion of this statement, and our supreme court stated, at page 193:

“ ‘[T]he remarks and advice of the court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.’ ”

Furthermore, the entire record may be considered in determining whether or not there was an understanding by tire accused of the nature of the charge. People v. Williams, 133 Ill.App.2d 214, 216, 272 N.E.2d 775.

Here, defendant represented by private counsel, responded in the affirmative when asked if he wished to plead guilty to the charge of involuntary manslaughter. He acknowledged his understanding of the rights he was waiving by this plea and of the possible penalties for the crime of involuntary manslaughter. These acknowledgments when considered with the recital of the stipulated evidence made in the presence of defendant and his counsel, without objection or denial of any portion thereof, demonstrate to our satisfaction that defendant was informed as to and understood the nature of the charge against him, including the acts and intent necessary to sustain the commission of the crime of involuntary manslaughter.

Finally, defendant argues the trial court accepted his plea without an open court statement of the terms of tire plea agreement and confirmation of them by personally questioning defendant in open court as required by Rule 402(b).

He refers us to People v. Ridley, 5 Ill.App.3d 680, 284 N.E.2d 37, where it was held that the trial court committed reversible error in not stating the terms of the plea agreement nor confirming them by personally questioning defendant in open court. We do not deem Ridley to be controlling in view of the recent expression of the Illinois Supreme Court in People v. Dudley, 58 Ill.2d 57, 316 N.E.2d 773, where, in holding that a conviction will not necessarily be reversed where the trial court fails to state or confirm the terms of a plea agreement in open court, it was stated at pages 60 and 61:

“There is no claim that the plea of the defendant, who was represented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant. When questioned by the judge the defendant expressed himself as being satisfied with the plea agreement which had been negotiated for him by his attorney, and even now there is no expression of dissatisfaction with the plea agreement’s terms. And finally, there is no contention by the defendant that the plea agreement was not honored — no claim that the sentence imposed was not the one agreed upon. What we observed in People v. Morehead, 45 Ill.2d 326, 332, is appropriate here: ‘It is not the policy of this court to reverse a judgment of conviction merely because error was committed unless it appears that real justice has been denied * *

Here, defendant does not complain that his plea was involuntary. We note also that, in the presence of his counsel, he expressed his desire to enter the plea, and as we have pointed out above, he was informed of the rights he was waiving and of the sentences that might be imposed. There is no complaint here that the terms of the plea agreement were not carried out.

Under these circumstances, where we have determined defendant’s plea was voluntary, and because no other harm or prejudice is claimed or has been shown, we conclude that the trial court did not commit prejudicial error in failing to state the terms of the plea agreement in open court or confirm them by personally questioning defendant in open court.

Defendant also contends his sentence was excessive in view of his age (27 at the time of sentencing), the nature and circumstances of the occurrence, the absence of prior convictions, his steady employment, and the fact that he was the father of an 8-month-old child.

Where it is claimed that a sentence is excessive, although within the limitations prescribed by the legislature, it should not be disturbed unless it clearly constitutes a great departure from the fundamental law and its spirit and purpose, or is manifestly in excess of the Illinois constitutional requirement that all penalties shall be proportionate to the nature of the offense. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.

Here, it was stipulated that defendant had a disagreement with his wife, and while they struggled over a gun, he shot and lolled her. At the hearing in aggravation and mitigation, the trial court was informed of defendant’s age, his lack of a prior record, his steady employment, and the fact that he was the father of a young child.

At the time of sentencing, the trial court made the following statement: “After taking regard to the nature and circumstances of the offense and the history and character of the defendant, I am sentencing in conformance with the recommendation of the State; * *

Thus, it is apparent that the court considered the information in mitigagation, as well as the circumstances surrounding the death.

It has been often stated that the trial court is normally in a better position to make a sound determination as to the punishment to be imposed than is a court of review (People v. Hampton, 44 Ill.2d 41, 48, 253 N.E.2d 385), which should not alter a trial court’s sentence merely because it would have imposed a different penalty had it been in the position of the court. (People v. Valentine, 60 Ill.App.2d 339, 356, 208 N.E.2d 595.) Here, the sentence imposed was within the limitations prescribed by the applicable statute, and from the stipulated statement as to what had occurred, it appears that the struggle with his wife and the shooting both occurred soon after defendant returned home. Although the shooting was apparently neither premeditated or retaliatory, a gun was used, and there appears no question that defendant fired the fatal shot.

In view thereof, we are not pursuaded that the sentence was improper.

For the reasons stated, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.