author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIRK PARKER et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—88—1551
    Opinion filed August 27, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
    Blair, Russell & Cole, of Chicago (Chester L. Blair, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

The defendants, Dirk Parker and Darryl Jackson, were charged by information with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(1), (a)(4)), aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, pars. 10—2(a)(3), (a)(5)), and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A—2). The defendants were also charged with the lesser included offenses of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)), kidnapping (Ill. Rev. Stat. 1985, ch. 38, pars. 10—1(a)(3), (a)(2)), and aggravated unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10—3(a)).

The defendants filed a motion to dismiss the charge on the grounds of double jeopardy. The trial court granted the motion, and the State appeals from the order of dismissal pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). The facts pertinent to this appeal are set forth below.

This matter was originally set for trial on November 18, 1987, before Judge Matthew J. Moran after numerous continuances. On that date, both sides answered ready; however, Judge Moran was presiding over another jury trial which was due to be completed the following day. The assistant State’s Attorney requested that the case be set for November 30, 1987, which he added was the last day of the term. Judge Moran expressed a reluctance to set the case on the last day of the term and suggested that jury selection began on November 25, 1987, the day before the Thanksgiving recess. Defense counsel objected to beginning jury selection on that day, contending that the delay between the selection of the jury and the presentation of evidence would be detrimental and unfair to the defendants due to the holiday recess. The State then agreed with the judge, and, thereafter, an exchange of words took place between defense counsel and the court, as set forth below:

“MR. BLAIR [defense attorney]: We are ready for trial. We demand trial, jury trial.
THE COURT: What’s the State’s position?
MR. RONKOWSKI [Assistant State’s Attorney]: Last day of the term is the 30th.
THE COURT: Well, this jury is going out tomorrow morning, so they will be out by 1:00 o’clock. Is the State saying we can hold it on call?
MR. KONCZAL [Assistant State’s Attorney]: The problem is if we picked a jury tomorrow we wouldn’t be able to start testimony until Thursday. We would really suggest the 30th to the Court, the last date of the term.
THE COURT: I hate to set the last date of the term.
MR. KONCZAL: I asked counsel to go by agreement to that date.
THE COURT: I checked with the jury commissioner, and he sees no problem with picking a jury on the 25th even though there will be no court on the 26th or 27th.
* * *
MR. BLAIR: The defendants here are on trial, and to pick a jury and to have them hanging over the weekend without any evidence coming to them I think would be fortuitous to say the least.
* * *
THE COURT: All right. I disagree. The jury is not going to be sequestered. It’s not going to hear any evidence on the date it’s picked. All we’re going to do is pick the jury and start the testimony on the next open court date.
MR. BLAIR: Which would be the 30th.
THE COURT: Which would be Monday, the 30th.
MR. BLAIR: Well, Judge, let’s start at 6:00 o’clock in the morning on the 30th.
MR. KONCZAL: I’ll go by agreement with him. I’m not trying to put counsel in a bind. Whatever counsel wants is fine.
THE COURT: Your last date of the term is the 30th.
MR. KONCZAL: Actually it may be the 29th. I would rather pick on the 25th as Your Honor has suggested.
THE COURT: They are ready to go on the 30th, but they just told me the term may run on the 28th or 29th. So I don’t want to get myself in that situation.
MR. BLAIR: The term doesn’t run on the 28th or 29th. The term runs on the 30th. I spent the last 20 minutes counting the term. They spent time counting the term. At least that’s the way it appears to me.
THE COURT: I think the Court is responsible too when matters are not properly brought to trial, and I like to see justice done in the courtroom and not individuals convicted or acquitted on technicalities, and I’m not going to be a part of that. I’ll set this for the 25th for picking of the jury. If you come in that day and for any good reason do not want to pick the jury until the 30th, I’ll set it motion defendant to pick it on the 30th, but I’m not going to take a chance on miscalculation.
MR. BLAIR: Judge, I think that you are now abusing — by that procedure you’re abusing the defense for the benefit of the prosecution, and you’ve just told me—
THE COURT: Sir-
MR. BLAIR: You just told me that you do not intend to abuse either side.
THE COURT: That’s true, sir.
MR. BLAIR: You said you do not want them to lose the case on a technicality.
THE COURT: I don’t want any case decided on a technicality.
MR. BLAIR: Then you ask me to pick a jury—
THE COURT: I resent your remarks, sir.
MR. BLAIR: Judge, I can understand that. I can understand your resenting them. I resent what is about to happen to my clients. These poor fellows here are before you for justice. We are only asking for the same fairness that you give to the State.
THE COURT: Sir, I resent your remark that I give justice only to the state’s attorneys or prosecutors, and I do not give justice to defendants that appear before me.
MR. BLAIR: I didn’t say that.
THE COURT: That’s your implication, sir, and I resent that, and I don’t care if you’re going to be head of the top bar association of this state. You are a man well respected, and I’ve respected you, sir, up until the last few minutes—
MR. BLAIR: You don’t respect me anymore?
THE COURT: I do respect you, sir, but I do not respect the remark that you just made that I do not render justice to defendants, and I’m not about to render justice to your clients. I resent that remark.
MR. BLAIR: May we have the record read so that the Court can see that what it’s saying is not what I said? May we have the record read? Would you please read back my remarks — [?]
THE COURT: Sir, I have a jury in the back and I intend to proceed with that case. Now if I’ve offended you, I do so unintentionally, but you have offended me, sir. I’m requesting to hold this case on trial on call everyday until we’re ready if that suits your convenience. Otherwise I’m going to set it for the 25th for picking a jury. I can pick a jury on this case tomorrow afternoon. If we’re not free or if you’re not free, we’ll hold it on call day-to-day. I have other cases on the call everyday, but I’ll set those aside if you feel that I’m taking advantage of you or your clients.
MR. BLAIR: Well, Judge, that procedure — I’m not talking about the Court, and I think it’s unfair to the defendants for the Court to take the remarks that I have made and become disturbed with the case because they are the ones on trial; I’m not, Judge.
THE COURT: I’m not disturbed with the defendants. I am disturbed with the remarks you made. I’m not disturbed with the two defendants. I don’t know them at all. I do know you, sir, and I respect you, and I am surprised you could make such a remark.
MR. BLAIR: How can I respond if you never let me tell you what I’m saying, Judge? I said to you that I believe it would be unfair to these defendants to have the case set for the 25th. I stand on that.
I hope the fact that I have been or am an officer of the Chicago Bar doesn’t work against my clients. I never mentioned it. Your Honor says that because of that I should understand this or thus. I certainly have no special feeling or feel that I have any special benefit that accrues to me. Indeed I’m more humble under the circumstances than I would be otherwise, but I say to you, Your Honor, to set that case on the 25th, the jury would go out the night of the 25th — .
THE COURT: The jury would not go out the 25th. The jury would be excused.
MR. BLAIR: They would go home.
THE COURT: That’s right, and instructed to come back on the 30th. I can’t see how the defendants or the State would be prejudiced by that procedure.
MR. BLAIR: They will spend the weekend talking about aggravated sexual assault, Judge, and everybody will be giving them their opinions about what aggravated sexual assault is. That’s the basis.
THE COURT: If you think the jury is going to disregard the admonitions of the Court, I would allow you to make appropriate motions on the 30th or make an inquiry of whether they discussed the case in violation of the Court’s order, but I can’t assume the jurors are going to violate the Court’s instructions over the Thanksgiving holiday period, sir. If the parties cannot agree on a date, as I indicated I’m concerned about the fourth term matters, and I will set it order of Court for picking of jury on the 25th.
MR. BLAIR: May we have the record reflect that the defendants object?
THE COURT: The record will so show. Counsel’s trial demands will also show.
MR. BLAIR: Thank you, Judge.
MR. RONKOWSKI: Is that motion State?
THE COURT: That will be order of court.”

The judge persisted in setting November 25, 1987, as the date on which the jury would be selected.

On November 25, 1987, defense counsel arrived at the courtroom approximately one hour late and explained to the court that there were some preliminary matters to be addressed. Judge Moran stated that he would excuse the venire for lunch. Before excusing them for lunch, he administered the oath to them to truthfully answer questions put to them and explained that the jury selection would take place that afternoon. Defense counsel was present during this proceeding. He did not interpose an objection to that swearing of the jury-

After the venire was excused for lunch, defendants presented a motion for substitution of judge based on prejudice which they contend surfaced during the colloquy which took place between defense counsel and Judge Moran on November 18, 1987. At that time the court had scheduled the trial date as November 25, 1987, over counsel’s objection. The prosecution objected to the motion on the basis of lack of notice. Defense counsel then pointed out to the court that the motion was timely filed and should be heard by another judge. Judge Moran responded that he had called Judge Phillip Carey, the supervising judge who generally heard such motions, and neither he nor any other judge in the criminal division was in the building. He believed all of the judges had left for the day, it being the day before Thanksgiving. Judge Moran stated that he would rule on the motion when court reconvened at 1 p.m.

Upon reconvening, Judge Moran commented that a notice of motion was not presented to the court or the State. He then proceeded to review the allegations contained in the motion, vehemently denied the allegations, stated that the motion was not supported by a transcript, and that he deemed it to be frivolous and dilatory. He concluded, therefore, that pursuant to case law he was authorized to rule on a frivolous and dilatory motion for substitution of judge without the need to assign it to a different judge for resolution. However, while the record reveals that Judge Moran made these observations about the merits of the pending motion, neither the half sheet nor the transcription reveals that he denied the motion or otherwise ruled on it. Rather, he advised counsel that the motion was deficient in form and substance and agreed to send it to another judge the following Monday if the deficiencies were corrected by then. While the record is not crystal clear on what deficiencies the judge alluded to, it appears that he made reference to the fact that the motion was unaccompanied by a transcript of the November 18 hearing as well as counsel’s failure to serve a notice of motion upon the prosecution. The judge also agreed to defer swearing the jury or taking testimony until a ruling was made by another judge on the motion for substitution of judge.

Judge Moran, however, proceeded with jury selection, and as each panel was selected, contrary to what he had agreed to do, administered the oath to them to try the issues. The record does not reflect that defense counsel objected to the swearing of the array. The judge then dismissed them for the weekend. Hence, at the time the jury was empaneled, there was pending before the court a motion for substitution of judge.

Next, defense counsel served the State with a notice of motion for substitution of judge to be heard on November 30, 1987. On that date, the same motion and affidavit which had been previously filed were assigned to Judge Carey, who allowed defendant a one-day continuance to obtain the November 18, 1987, transcript. Judge Moran submitted his own counteraffidavit as well as a transcript of those proceedings occurring on November 25,1987.

Finally, on December 1, 1987, Judge Carey heard arguments on the motion. After reviewing the motion, affidavits and the transcripts of the colloquy between Judge Moran and defense counsel, Judge Carey commented that the statement made by Judge Moran that “he didn’t care if [defense counsel] was the president of the Chicago Bar Association” was indicative of hostility. He then ruled that although the record did not indicate that Judge Moran “would not give a fair and impartial trial *** the best interest of justice would be served by assigning this case out to another judge for disposition.” In any event, the motion for substitution was allowed and the case reassigned to Judge Romie J. Palmer. The prosecution and defendants ultimately agreed to an order declaring a mistrial and dismissing the jury empaneled by Judge Moran. The case was then continued to January 20, 1988, for the purpose of setting a new trial date.

On February 10, 1988, the defendants filed a motion to dismiss based on double jeopardy, and an amended motion, affidavit, and memorandum of law were filed on March 14, 1988. Defense counsel argued that Judge Moran’s conduct constituted judicial overreaching which resulted in a mistrial after jeopardy had attached. After hearing argument on the motion, on April 18, 1988, Judge Palmer concluded that Judge Moran’s actions of continuing with and concluding the jury selection process after defense counsel had filed a motion for substitution of judge constituted grounds for double jeopardy. He granted defendants’ motion to dismiss. On appeal, we are called upon to determine whether the trial court properly concluded that defendants’ trial was barred based on double jeopardy.

The double jeopardy clauses of the United States and Illinois Constitutions protect a criminal defendant from being put twice in jeopardy for the same offense. (U.S. Const, amend. V; Ill. Const. 1970, art. I, §10; United States v. Dinitz (1976), 424 U.S. 600, 606, 47 L. Ed. 2d 267, 273, 96 S. Ct. 1075, 1079.) This protection has been codified as section 3

“(a) prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
* * *
(3) [w]as terminated improperly after the jury was impaneled and sworn ***.” Ill. Rev. Stat. 1985, ch. 38, par. 3—4(a)(3).

A defendant is placed in jeopardy when the defendant goes to trial whether the trier of fact is a jury or a judge. (United States v. Jorn (1971), 400 U.S. 470, 479, 27 L. Ed. 2d 543, 553, 91 S. Ct. 547, 554; People v. Williams (1984), 130 Ill. App. 3d 11, 14, 473 N.E.2d 536.) However, in a jury trial jeopardy attaches when the jury is sworn, and in a nonjury trial jeopardy attaches when the first witness is sworn. (See People v. Friason (1961), 22 Ill. 2d 563, 177 N.E.2d 230; People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) In the present case, a mistrial was declared after the jury was sworn by Judge Moran. Therefore, jeopardy had attached. In People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert, denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292, the court held that the determination of whether a second trial is permissible after jeopardy has attached must be made on a case-by-case basis depending on the particular factual matrix at issue.

A different analysis is required in considering this issue where a mistrial has been declared on defendant’s motion or with his consent as opposed to when it is granted over his objection. Defendants concede that they consented to the dismissal of the jury. It is their contention, however, that such consent was coerced by judicial overreaching and hence retrial is prohibited.

The court in Jorn (400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547) set forth the standard to be applied where a defendant requests a mistrial or consents to a mistrial. (People v. Camden (1987), 115 Ill. 2d 369, 377, 504 N.E.2d 96; People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 508, 431 N.E.2d 853.) The Jorn court held:

“[Wjhere circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” Jorn, 400 U.S. at 485, 27 L. Ed. 2d at 556, 91 S. Ct. at 557.

In many instances mistrials are requested by defendants even though the perceived error which necessitated the request was committed by the judge. (United States v. Scott (1978), 437 U.S. 82, 93, 57 L. Ed. 2d 65, 76, 98 S. Ct. 2187, 2195.) However, when a motion for mistrial is presented under those circumstances the defendant is considered to have made an election to forgo his right to have his guilt or innocence determined before the first trier of fact. Scott, 437 U.S. at 93, 57 L. Ed. 2d at 75-76, 98 S. Ct. at 2195.

In light of the holding in United States v. Jorn, a retrial of a defendant is not precluded unless it can be shown that the circumstances which brought about the defendant’s motion for a mistrial were attributable to prosecutorial or judicial overreaching or to bad-faith conduct and not simply because a judicial error occurred. (Orenic, 88 Ill. 2d at 510.) Therefore, the circumstances under which the defendant can base a double jeopardy claim to bar a second effort to try him are specifically limited to situations in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Oregon v. Kennedy (1981), 456 U.S. 667, 672, 72 L. Ed. 2d 416, 422, 102 S. Ct. 2083, 2087.) Once a defendant has succeeded in aborting the first trial either by agreement or on his own motion, he may only raise the bar of double jeopardy where the government conduct is intended to “goad” the defendant into moving for a mistrial. Oregon, 456 U.S. at 679, 72 L. Ed. 2d at 426-27, 102 S. Ct. at 2091.

In the present case, the record reflects that Judge Moran was steadfast in his resolve to select the jury on the eve before Thanksgiving, November 25. He asserted that his concern was not to wait until the last day of the term. Once defense counsel began advocating his reasons for seeking either to try the case on a date certain before the 25th of November or on the Monday following the holiday, the judge’s comments suggest that he was offended by counsel’s plea to him to render justice to the defendants on the same plane as to the State. It was during such a colloquy that the court negatively referred to the defense counsel’s position with the Chicago Bar Association. It was during this colloquy that defendants contend the court’s hostility and prejudice came to their attention. Consequently, on the trial date of the 25th of November, defendants sought a substitution of judge pursuant to the statutory provision for cause. (See Ill. Rev. Stat. 1985, ch. 38, par. 114—5.) While the court rejected the motion as being “faulty in form and substance” and defendants viewed this as a denial, such fact is not clear from the record. The court stated the following:

“The court feels this motion is clearly frivolous and clearly dilatory ***. Again, the court reiterates that this motion is faulty in form and in substance. If counsel desires to represent this motion on Monday when the supervising judge will be in the building, the court will entertain the new and amended motion and assign it to Judge Carey for hearing before this jury is finally sworn and before testimony is heard. There is no way the court can assign this to a criminal court judge at this time of the afternoon, on November 25. At this time the court intends to proceed and select a jury in this case.”

The U.S. Supreme Court articulated an exposition on what constitutes judicial or prosecutorial overreaching in Dinitz (424 U.S. 600, 47 L. Ed. 2d 267, 96 S. Ct. 1075). The court stated:

“It bars retrials where ‘bad-faith conduct by judge or prosecution],’ United States v. Jorn (1971), 400 U.S. 470, 485, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 557, threatens the ‘[h]arrassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” (Dinitz, 424 U.S. at 611, 47 L. Ed. 2d at 276, 96 S. Ct. at 1081, quoting Downum v. United States (1963), 372 U.S. 734, 736, 10 L. Ed. 2d 100, 102, 83 S. Ct. 1033, 1034.)

The kind of error contemplated by this discussion is that which was “intended to provoke” the mistrial or “motivated by bad faith or undertaken to harass or prejudice” the petitioner. Lee v. United States (1977), 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2147; United States v. DiFrancesco (1980), 449 U.S. 117, 66 L. Ed. 2d 328,101 S. Ct. 426.

Even if we were to conclude that the trial judge’s conduct did constitute judicial overreaching, we do not consider this the kind of factual circumstance which bar reprosecution on double jeopardy grounds. Our supreme court, as previously noted, has held that the rule barring reprosecution of cases is rather limited. The overreaching must either be done for the purpose of provoking a mistrial in order to secure a second — and perhaps more favorable — opportunity to convict the accused or be motivated by bad faith or undertaken to harass or prejudice the accused. The record is devoid of any evidence that the court’s intention was to provoke a mistrial. Additionally, the record suggests that the judge’s actions were motivated by his sincere but mistaken belief that the term was about to expire and as a judicial officer it was his belief that the prevention of such an occurrence was his responsibility. It is well established that a motion for substitution of judge constitutes a delay attributable to the movant, and hence, tolls the 120-day provision of the “speedy trial” statute. (People v. Lee (1969), 44 Ill. 2d 161, 254 N.E.2d 496; People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697; People v. Zuniga (1973), 53 Ill. 2d 550, 293 N.E.2d 595.) In the case at bar the “speedy trial” statute was tolled on November 25, when defendants filed their motion for substitution of judge.

Additionally, the court’s pronouncement that the defendants’ motion was faulty in form and substance, assuming it referred to the lack of notice and the transcript, was in error since the case was on the trial call, and hence, there was no necessity to provide a notice of motion. (See Cook County Circuit Court Rule 203.) Neither does the statutory provision for substitution of judge require that a motion be accompanied by a transcript. (Ill. Rev. Stat. 1987, ch. 38, par. 114— 5(c).) The only requirement is that it be accompanied by an affidavit, which it was. The record when reviewed in totality reveals that the comments made by both defense counsel and the court oftentimes misstated and/or misconstrued what the other one said. The court’s injudicious remark regarding counsel’s position with the bar association was unfortunate. However, such a remark was not crucial to the issues in this case. The judge was obviously irritated because he felt his comments were being misstated. Consequently, after reviewing the record and circumstances of this case, we cannot conclude that the judge’s conduct was “intended to goad” the defendants into moving for a mistrial. Oregon, 456 U.S. at 679, 72 L. Ed. 2d at 426-27, 102 S. Ct. at 2091.

When Judge Moran failed to initially assign the motion to a different judge and continued with jury selection, he appeared to be genuinely concerned about setting a case on the last day of the term and wanting to expeditiously dispose of the matter. Further, defense counsel in conjunction with the prosecution stipulated to a mistrial. Even if Judge Moran committed an error, during the November 18, and November 25, 1987, proceedings, “[m]ere error by a trial court does not amount to ‘judicial overreaching’ so as to bar the reprosecution of a defendant who has requested a mistrial.” Orenic, 88 Ill. 2d at 511; Dinitz, 424 U.S. at 611, 47 L. Ed. 2d at 276, 96 S. Ct. at 1081.

Accordingly, upon a thorough review of the facts in this case, we hold that Judge Moran’s actions did not constitute judicial overreaching nor did the evidence reveal that his conduct was intended to abort the trial or provoke defense counsel into moving for a mistrial. Judge Palmer entered an order dismissing the jury impaneled by Judge Moran resulting in a mistrial based on a stipulated agreement between defense counsel and the prosecution.

We further conclude, therefore, that under the facts of this case, the double jeopardy clause does not bar the reprosecution of the defendants. As noted above, although there may have been judicial error as well as injudicious and improper remarks, the facts do not bear out that the trial court deliberately undermined the integrity of the first proceeding.

Accordingly, for the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for trial.

Reversed and remanded.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      The half sheet reflects that on November 25, 1987, “PP, both defts on bond motion for substitution of judge filed ms nolle prosse counts 13 thru 28 and 30 thru 33 ... twelve jurors and two alternates accepted and sworn to try the issue on 11-30-87.”

      The transcription reveals that not only was the jury selected, but it was sworn to try the issues.

      defendants, however, state in their motion to dismiss that they construed his actions to be a denial of the motion.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    ELKAY MANUFACTURING COMPANY, Plaintiff-Appellant, v. ROGER D. SWEET, Director of the Department of Revenue, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2251
    Opinion filed August 27, 1990.

      Martin, Craig, Chester & Sonnenschein, of Chicago (Thomas H. Donohoe, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This action arises from the circuit court’s affirmance on administrative review of the decision of the Illinois Department of Revenue (the Department) assessing Elkay Manufacturing Company (plaintiff) a $62,016.21 tax deficiency on certain sales under the Municipal Retailers’ Occupation Tax Act (MROT Act) (Ill. Rev. Stat. 1987, ch. 24, par. 8—11—1) and the Regional Transportation Authority Retailers’ Occupation Tax Act (RTA Act) (Ill. Rev. Stat. 1987, ch. 111⅔, par. 704.03(e)). Plaintiff appeals from the circuit court’s ruling, contending that (1) the retail sales tax acts do not apply to plaintiff’s wholesale business, and (2) the administrative ruling that plaintiff’s sales are taxable as retail sales is against the manifest weight of evidence. We affirm.

In late 1984 and early 1985, the Department conducted an audit of plaintiff, an Illinois corporation which manufactures stainless steel sinks, water coolers, and faucets. As a result of the audit, the Department determined that plaintiff had not paid taxes for the period January 1, 1981, through December 31, 1984, under the MROT and RTA Acts on certain sales of water coolers made to Hinckley & Schmitt.

At the administrative hearing on the deficiency, the Department introduced into evidence its “Correction of Returns or Determination of Tax Due,” indicating plaintiff’s MROT and RTA deficiencies on sales to Hinckley & Schmitt. Lucy Knight, a senior auditor for the Department, testified that after examining plaintiff’s books and records, she prepared a “Summary Analysis of Tax Liability” as to the deficiencies. Knight concluded that the sales were taxable as retail sales, as opposed to nontaxable purchases for resale, from an October 28, 1976, letter she found when examining the books in October 1984. This letter, signed by David Chelnick, Hinckley & Schmitt’s controller, stated that Hinckley & Schmitt had paid “use tax *** on all coolers purchased from [plaintiff].”

Knight further testified that she informed plaintiff of the letter in September 1985, after which plaintiff sent a blanket resale certificate to Hinckley & Schmitt. Knight testified that, upon observing the returned resale certificate bearing the signature of Chelnick, she informed plaintiff that she would not accept the certificate due to her belief that the sales were not made in good faith since plaintiff had the 1976 letter already in its possession at the time of the sales. Knight stated, over objection, that she telephoned Chelnick after plaintiff had expressed opposition to her position. Chelnick informed her that Hinckley & Schmitt did not resell the water coolers but leased them, that they continued to pay use tax on the water coolers, and that he “would never sign” a resale certificate as to the coolers in issue.

Edward J. Styka, the attorney representing plaintiff, introduced into evidence exhibits on behalf of plaintiff and made certain representations regarding the exhibits. Styka represented that plaintiff obtained from Hinckley & Schmitt a letter, dated December 10, 1976, containing their sales tax number and, on May 30, 1985, an undated resale certificate. Styka also tendered an exhibit he prepared summarizing for the audit years plaintiffs total sales and total reported taxable sales, excluding the sales to Hinckley & Schmitt, to support his argument that plaintiff was a wholesaler not subject to retail tax. The summary indicated that plaintiff’s taxable (retail) sales represented less than .10% of plaintiff’s total annual sales.

In rebuttal, Knight testified that included in Styka’s nontaxable sales figures were sales from their out-of-State subsidiaries which could have been retail sales but would not have been taxable in Illinois. Glennon Taylor, an audit supervisor for the Department, testified that the return reporting plaintiff’s taxable and gross receipts, from which Styka had made his analysis, included interstate commerce sales as part of the gross receipts. Taylor estimated, under an analysis computing the percentage of taxable receipts to the total wholesale sales, that the percentage of taxable sales more closely approximated 1% of the total sales.

At the close of the hearing, the administrative law judge (ALJ) found plaintiff to be liable for the MROT and RTA tax deficiencies claimed by the Department. The ALJ found that the sales in issue were not nontaxable resale sales but taxable sales to an end user. The ALJ stated that the best evidence of such was the October 28, 1976, letter, and that Hinckley & Schmitt did not execute a valid resale certificate. The circuit court, in affirming the Department’s decision, found that the Department’s determination as to plaintiff’s liability was not against the manifest weight of the evidence and that the MROT and RTA Acts applied to plaintiff’s sales to Hinckley & Sch-mitt.

In reviewing plaintiff’s claim on appeal of the circuit court’s ruling, we need only consider the Retailer’s Occupation Tax Act (the ROT Act) (Ill. Rev. Stat. 1987, ch. 120, par. 440 et seq.) because the MROT and RTA Acts incorporate by reference the pertinent provisions of the ROT Act. (See Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 478, 413 N.E.2d 370, 371.) The ROT Act is entitled “An Act in relation to a tax upon persons engaged in the business of selling tangible personal property.” (Ill. Rev. Stat. 1987, ch. 120, par. 440.) Its provisions impose a tax upon persons “engaged in the business of selling tangible personal property at retail.” Ill. Rev. Stat. 1987, ch. 120, par. 441.

We will consider first plaintiff’s contention that the Department’s decision that plaintiff’s sales to Hinckley & Schmitt are taxable retail sales is against the manifest weight of the evidence. In reviewing the evidence offered at the administrative hearing, we are directed by the following established law. The Department’s corrected return is deemed to be prima facie evidence of the correctness of the amount of tax due (Ill. Rev. Stat. 1987, ch. 120, par. 443), and its prima facie case is established by simply submitting the corrected return into evidence at the hearing (Central Furniture Mart, Inc. v. Johnson (1987), 157 Ill. App. 3d 907, 910, 510 N.E.2d 937, 939). Where a corrected return is challenged, the record must only demonstrate that the department’s method of preparing the corrected return meets some minimum standard of reasonableness. (Central Furniture, 157 Ill. App. 3d at 910, 510 N.E.2d at 939; Smith v. Department of Revenue (1986), 143 Ill. App. 3d 607, 611, 493 N.E.2d 653, 656; Puteo v. Department of Revenue (1983), 117 Ill. App. 3d 260, 266, 453 N.E.2d 48, 52.) Once a prima facie case has been established, the taxpayer thereupon bears the burden of overcoming this evidence by showing the transaction to be nontaxable. Illinois Cereal Mills, Inc. v. Department of Revenue (1983), 99 Ill. 2d 9, 16, 457 N.E.2d 385, 388; United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 455, 419 N.E.2d 899, 904; Howard Worthington, Inc. v. Department of Revenue (1981), 96 Ill. App. 3d 1132, 1134, 421 N.E.2d 1030, 1032.

In the case at bar, the Department submitted at the administrative hearing the corrected return made by its auditor indicating that plaintiff had failed to pay taxes on retail sales of water coolers made to Hinckley & Schmitt. The record does not demonstrate that the auditor’s methods failed to meet a minimum standard of reasonableness. The auditor testified that, after inspecting plaintiff’s books and records, she concluded that the sales in issue were retail sales from a 1976 letter signed by Hinckley & Schmitt’s controller which indicated that Hinckley & Schmitt had paid use tax to the State on all of the coolers it purchased from plaintiff. The auditor testified that she rejected a resale certificate subsequently procured by plaintiff in 1985 because the 1976 letter had been in plaintiffs possession at the time of the sales and because, upon her inquiry, Hinckley & Schmitt’s controller stated that he would never sign a resale certificate as to the coolers and reaffirmed that Hinckley & Schmitt continued to pay use tax on the coolers. Because the record does not demonstrate that the methods employed by the auditor were unreasonable, it is evident that the Department established its prima facie case. It was then incumbent upon plaintiff to overcome the Department’s prima facie case.

Before looking to the evidence offered by plaintiff to overcome the Department’s prima facie case, we will address two issues raised by plaintiff which may be pertinent to our analysis. Plaintiff first argues that it was fundamentally unfair that the ALJ ruled that plaintiff did not have a valid resale certificate when in the presentation of the Department’s prima facie case it presented the theory that a valid resale certificate had not been taken in good faith. Plaintiff misplaces its reliance on the principle set forth in A.R. Barnes & Co. v. Department of Revenue (1988), 173 Ill. App. 3d 826, 527 N.E.2d 1048, and Cartwright v. Illinois Civil Service Comm’n (1980), 80 Ill. App. 3d 787, 400 N.E.2d 581. These cases stand for the proposition that a charge before an administrative agency must reasonably apprise a respondent of the charges so that he can intelligently prepare his defense. As our previous discussion demonstrates, the auditor’s testimony as to the resale certificate did not comprise “the Department’s theory.” The ROT Act, by allowing the corrected return to be prima facie proof of the correctness of the amount due, places the burden upon the taxpayer to come forward with any evidence it has to prove the sales were nontaxable, which would include evidence that the sales were not retail sales. Thus, plaintiff cannot claim surprise here.

Plaintiff also argues that the Department improperly relied on hearsay evidence of the auditor’s conversation with Hinckley & Sch-mitt’s controller regarding the resale certificate. Because the Department has conceded on appeal that the controller’s statements as testified to by the auditor would be inadmissible hearsay if admitted for their truth, we will not consider these statements in reviewing whether plaintiff overcame the Department’s prima facie case.

To overcome the Department’s prima facie case, a taxpayer must present more than its testimony denying the accuracy of the assessments, but must present sufficient documentary support for its assertions. (Central, 157 Ill. App. 3d at 911, 510 N.E.2d at 940; Smith, 143 Ill. App. 3d at 613, 493 N.E.2d at 656.) Plaintiff submitted two documents which it claims establish the sales are nontaxable resale sales under section 2c of the ROT Act, which provides, in pertinent part:

“[A] sale shall be made tax-free on the ground of being a sale for resale if the purchaser has an active registration number or resale number *** and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.” (Ill. Rev. Stat. 1987, ch. 120, par. 441c.)

Plaintiff asserts that the December 10, 1976, letter from Hinckley & Schmitt meets the literal terms of this provision. This letter, in its entirety, states, “Our state of Illinois sales tax number is 011 — 691.” Section 2c, however, requires the purchaser to furnish the number in connection with certifying that any sale is nontaxable as a resale. Because the letter does not indicate that the number is being furnished for purposes of any sales, it does not comply with section 2c.

Plaintiff claims that the second document, which bears Hinckley & Schmitt’s resale number, is a “resale certificate” given to plaintiff by Hinckley & Schmitt. Provided the certificate is correct, “the Department will accept Certificates of Resale as prima facie proof that sales covered thereby were made for resale.” (86 Ill. Adm. Code §130.1405(b) (1985).) The certificate of resale must “bear the seller’s name and address, the name and address of the purchaser, the date when such certificate was signed by the purchaser, a sufficient identification of the property sold for resale to the purchaser, and the purchaser’s registration number or resale number with the Department.” 86 Ill. Adm. Code §130.1410(g) (1985).

The document does not meet the above statutory requirements to be a valid certificate of resale. Not only is the certificate itself not signed, it does not include any description whatsoever of the purchased property. Plaintiff, though, argues that the document qualifies as a “blanket resale certificate,” which does not require a description of the specific property since the buyer states that all of its purchases are for resale. See 86 Ill. Adm. Code §130.1420 (1985).

In examining this document, we cannot conclude that Hinckley & Schmitt is representing that all of its purchases are for resale. Plaintiff forwarded Hinckley & Schmitt a form containing blank spaces to be filled in by the customer. The lower portion of the document completed by an employee from Hinckley & Schmitt does not indicate that all the purchases from plaintiff are for resale. The upper portion of the document states the following:

“TO ALL ELKAY CUSTOMERS DOING BUSINESS IN THE STATE OF ILLINOIS The Illinois Retailers’ Occupation Tax Act (See Below*) requires us to have a current certificate of your registration or resale number for our files. This will cover purchases from us that are for resale. Will you please complete and return the form below or send us a copy of your resale certificate? A self-addressed envelope is enclosed for your convenience.”

In view of the ambiguity in the document as to whether Hinckley & Schmitt is representing that all of its purchases are for resale and in light of the 1976 letter indicating that Hinckley & Schmitt had made retail purchases from plaintiff, a finding that the document did not qualify as a valid blanket resale certificate is not against the manifest weight of the evidence.

Accordingly, the documentary evidence submitted by plaintiff at the hearing was not sufficient to overcome the Department’s prima facie case. The administrative decision that plaintiff’s sales to Hinckley & Schmitt were taxable retail sales, therefore, is not against the manifest weight of the evidence.

Plaintiff next contends that, even if the sales are retail sales, the ROT Act does not apply to its business. Citing the often-stated proposition that the ROT Act subjects to tax, not the sale of property, but the business of selling property for use or consumption (Fefferman v. Marohn (1951), 408 Ill. 542, 545-46, 97 N.E.2d 785, 787; Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 65, 108 N.E.2d 8, 14; Central Television Service, Inc. v. Isaacs (1963), 27 Ill. 2d 420, 426, 189 N.E.2d 333, 336), plaintiff argues that, as a wholesaler whose retail sales comprise a minute portion of its total sales, it is not subject to the ROT Act’s tax upon the business or occupation of selling at retail, even on its retail sales.

Plaintiff argues that its position is a logical extension of the supreme court decisions in Dearborn Wholesale Grocers, Inc. v. Whitler (1980), 82 Ill. 2d 471, 413 N.E.2d 370, and Illinois Cereal Mills, Inc. v. Department of Revenue (1983), 99 Ill. 2d 9, 457 N.E.2d 385. In Dearborn and Cereal Mills, the court found that the application of section 2c’s document verification requirements for resales to impose a tax on a wholesaler’s nonretail sales would unconstitutionally extend the ROT Act to wholesalers. (See Ill. Const. 1970, art. 4, §13; International Business Machines Corp. v. Department of Revenue (1962), 25 Ill. 2d 503, 185 N.E.2d 257.) To avoid this constitutional deformity, the court construed section 2c’s document verification provision to apply only to retailers. In Dearborn, the sales to which section 2c was sought to be applied admittedly were resales and the unchallenged evidence indicated that all of the plaintiff’s sales were for resale. In Cereal Mills, the questioned sales were acknowledged to be for resale, but the plaintiff had also made a minute portion of its total sales at retail for which it had voluntarily paid retail taxes. The court refused to distinguish Dearborn on the basis of the retail sales, stating that it could not be realistically said from the plaintiff’s retail sales that it was engaged in the business of selling at retail. Cereal Mills, 99 Ill. 2d at 16-17, 457 N.E.2d at 388-89.

It is unnecessary for the resolution of this case to determine whether it follows from Cereal Mills that retail sales as therein described are not subject to the ROT Act because plaintiff has not demonstrated that its retail sales fit within the parameters of Cereal Mills and its progeny. The Department’s corrected return as to the amount of tax due implicitly found that the plaintiff was engaged in the retail business and is prima facie evidence of such. (See Howard, 96 Ill. App. 3d at 1134-35, 421 N.E.2d at 1032.) It was then plaintiff’s burden to overcome the prima facie evidence by showing that it was not engaged in the retail business.

Plaintiff’s evidence indicated that its retail sales represented less than .1% of its total annual sales, although rebuttal evidence indicated that plaintiff’s retail sales more closely approximated 1% of its total sales. Plaintiff points out that its retail sales, under either of these figures, comprise the same or a smaller percentage of retail sales for which the plaintiff in Cereal Mills was found not to be engaged in the retail business. Nonetheless, supreme court case law indicates that the inquiry into whether a business is engaged in the business of retail is not limited to consideration of the percentage of retail sales made by the business.

The court in Cereal Mills noted that the small percentage of retail sales, consisting of less than 1% of its sales, were made from accommodation and good-will motives. In Tri-America Oil Co. v. Department of Revenue (1984), 102 Ill. 2d 234, 464 N.E.2d 1076, a case decided a short time after Cereal Mills, the court explained that Cereal Mills “extended the [Dearborn] exception to a wholesale seller who made only casual or isolated retail sales as an accommodation to its regular customers. The sales in that case were made to foster good will on the part of customers, and they accounted for only a minute portion of the total sales made by [Cereal Mills].” (Emphasis added.) (Tri-America, 102 Ill. 2d at 239, 464 N.E.2d at 1078.) The court distinguished Cereal Mills from the situation before it, where the plaintiff, who leased over 20 gasoline stations on a nonretail basis to independent dealers, also made regular gasoline sales to the general public at three stations. It found that the plaintiff held itself out to the public as a retailer by operating the three stations as a retail business and that the questioned sales were neither insignificant in amount nor irregular in frequency. Tri-America, 102 Ill. 2d at 239, 241, 464 N.E.2d at 1078-79.

Tri-America controls the instant case. Unlike Cereal Mills, where the purpose of the retail sales was to accommodate its regular wholesale customers, plaintiff presented no evidence that Hinckley & Sch-mitt was a regular wholesale customer or that the retail sales were infrequent and made solely for accommodation purposes. Nor did plaintiff present any evidence that any of the retail sales cited in the summary were so made. In fact, plaintiff’s attorney admitted at the administrative hearing that the questioned sales involve “all [plaintiff’s] products sold to Hinckley & Schmitt.” Without any evidence to the contrary, it can only be concluded that plaintiff held itself out to its retail customers as a retailer by selling its products on a regular, retail basis. Thus, even assuming arguendo that the reasoning in Dearborn and Cereal Mills would extend to the situation at hand, plaintiff has not demonstrated that it was not engaged in the business of retail selling.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.

      Plaintiff acknowledged at oral argument before this court that the Department did not assess a tax under the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 440) because Hinckley & Schmitt had paid a use tax with respect to these sales. See Ill. Rev. Stat. 1987, ch. 120, par. 439.1 et seq.

      The ROT Act has a complimentary act, the Use Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 439.1 et seq.), which taxes a purchaser’s privilege of using personal property within Illinois. Its purpose is to prevent “the evasion of tax on purchases made outside the State and to equalize the competitive disadvantage of Illinois retailers who face retailers’ occupation tax liability.” United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 450, 419 N.E.2d 899, 901; see also Turner v. Wright (1957), 11 Ill. 2d 161, 142 N.E.2d 84.

      We acknowledge plaintiff’s objection to the introduction of the auditor’s conversations with the controller at the administrative hearing on hearsay grounds. This testimony is set forth here, not for purposes of the truth of the matter asserted, but to show the methods employed by the auditor in reaching her determination.

      Section 2c as in effect at the time, provided in pertinent part:
      “Except as provided hereinabove in this Section, no sale shall be made tax-free on the ground of being a sale for resale unless the purchaser has an active registration number or resale number from the Department and furnishes that number to the seller in connection with certifying to the seller that any sale to such purchaser is nontaxable because of being a sale for resale.” (Ill. Rev. Stat. 1979, ch. 120, par. 441c.)
      As amended in 1984, section 2c provided in pertinent part:
      “Failure to present an active registration number or resale number and a certification to the seller that a sale is for resale creates a presumption that a sale is not for resale. This presumption may be rebutted by other evidence that all of the seller’s sales are sale for resale, or that a particular sale is a sale for resale. ” Pub. Act 83 — 1463, eff. September 19, 1984 (amending Ill. Rev. Stat. 1979, ch. 120, par. 441c).


text:
    JUNE STANTON et al., Plaintiffs-Appellants, v. REPUBLIC BANK OF SOUTH CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2642
    Opinion filed August 27, 1990.

      John R. O’Brien, P.C., of Chicago, for appellants.
    Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Charles R. McKirdy, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This is an interlocutory appeal from the order of the circuit court entering partial summary judgment against dissenting shareholders to a bank merger in their action seeking the recovery of dividends and the fair value of their shares. The sole issue presented for our review is whether dissenting shareholders to a bank merger are entitled under the Illinois Banking Act (the Act) (Ill. Rev. Stat. 1987, ch. 17, par. 301 et seq.) to receive stock dividends declared and paid between the merger date and the date upon which the fair value of the dissenting shareholders’ shares is determined by judicial proceedings.

Following the effective date of the merger between South Chicago Savings Bank and the newly formed banking corporation known as Republic Bank of South Chicago (defendant), June Stanton, William P. Lloyd, Margaret C. Kenny, and John R. O’Brien (plaintiffs) perfected their rights as dissenting shareholders to the merger pursuant to the appraisal procedures afforded dissenting shareholders in section 29 of the Act (Ill. Rev. Stat. 1987, ch. 17, par. 336). Plaintiffs subsequently sought a judicial determination of the fair value of their shares as provided in the appraisal provision, and thereafter added a claim for the recovery of dividends declared and paid by defendant during the period subsequent to the merger and during the pendency of the valuation proceedings. In granting summary judgment to defendant on the latter claim, the circuit court held that the appraisal remedy afforded dissenting shareholders to a bank merger in section 29 of the Act does not entitle dissenting shareholders to dividends paid by the merged bank during the pendency of stock valuation proceedings subsequent to the merger.

Plaintiffs’ position on appeal, as it was before the circuit court, is that dissenting shareholders to an Illinois bank merger retain the same interest in their shares and the continuing bank as other bank shareholders until they are paid the fair value of their shares, including the right to receive dividends. The converse position asserted by defendant is that dissenting bank stockholders who elect to pursue the statutory appraisal remedy surrender certain rights usually associated with stock ownership and are entitled only to the relief as specifically provided in the appraisal statute.

The impetus for the enactment of appraisal statutes was the common law rule requiring the unanimous consent of stockholders to implement major corporate transactions, such as mergers or sales of substantially all the corporation’s assets, and its resulting license to minority stockholders to maintain a tyrannical hold upon a corporation. (18A Am. Jur. 2d, Corporations §805 (1985); see Johnson v. Baldwin (1952), 221 S.C. 141, 69 S.E.2d 585; Chicago Corp. v. Munds (1934), 20 Del. Ch. 142, 172 A. 452; Winfree v. Riverside Cotton Mills, Co. (1912), 113 Va. 717, 75 S.E. 309.) Appraisal provisions, enacted in conjunction with provisions providing for less than an absolute majority to approve major corporate transactions, were the “bargained exchange” for abolition of the unanimous-consent requirement. As such, the provisions were intended to change the status of a dissenting shareholder to that of a creditor, thereby allowing the dissenter distributive rights superior to that of the remaining shareholders. 18A Am. Jur. 2d Corporations §805 (1985); see also Flarsheim v. Twenty Five Thirty Two Broadway Corp. (Mo. 1968), 432 S.W.2d 245, 253, citing 13 Fletcher Cyclopedia of Corporations §5898; Narragansett Electric Lighting Co. v. Sabre (1929), 50 R.I. 288, 146 A. 777.

Like other appraisal statutes, section 29 of the Act provides specific procedures for the perfection of rights as a dissenting shareholder to a bank merger and for the valuation and payment of the dissenter’s stock. Section 29 entitles a dissenting shareholder who follows certain procedures to “make written demand on the continuing bank for payment of the fair value of his shares as of the day prior to the date on which the vote was taken approving the merger” and provides that, upon agreement as to the value of such shares and the surrender of stock certificates, “payment *** shall be made within 90 days after the date on which such merger was effected.” In the event no agreement is reached as to the fair value of the stock, “the dissenting stockholder may *** file a complaint in the circuit court asking for a finding and determination of the fair value of such shares, and shall be entitled to judgment against the continuing bank for the amount of such fair value as of the day prior to the date on which such vote was taken approving such merger with interest thereon to the date of such judgment.” Ill. Rev. Stat. 1987, ch. 17, par. 336.

The language which plaintiffs maintain affords them the same post-merger, prepayment rights as other shareholders is that directly following the language permitting payment of fair value as agreed upon, and repeated following the language providing for payment of fair value as judicially determined:

“Upon payment of the agreed value [or judgment] the dissenting stockholder shall cease to have any interest in such shares or in the continuing bank.” (Ill. Rev. Stat. 1987, ch. 17, par. 336.)

Plaintiffs assert that the clear meaning of this language is that a dissenting shareholder continues his interest as a “shareholder” until he is paid the fair value of his shares. Conversely, defendant argues that, when read in conjunction with other portions of the provision, it is clear that “interest” refers to the previously afforded right to receive full value for the shares and that the statute affords the dissenting shareholder no other remedy.

In exercising our function of statutory interpretation to effectuate the intent of the legislature, we note that no legislative history exists as to this enactment since it was adopted at a referendum election and that no Illinois court has interpreted the provision as it relates to the issue before us. When faced with a statute which has not been judicially interpreted, a court must give the language its plain and ordinary meaning without resort to other construction aids, unless the legislative intent cannot thereby be ascertained due to ambiguity in its language. (Trigg v. Sanders (1987), 162 Ill. App. 3d 719, 515 N.E.2d 1367.) Where the proper interpretation of a statute cannot be based upon its language alone, the court is then guided by rules of statutory construction. The court must look to the entire statute and consider the reason and necessity of the law, the objective which the statute sought to accomplish, and the evils sought to be remedied. (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219; People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) The interpretation must be grounded on the nature, objects and the consequences that would result from the construction. Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 527 N.E.2d 1264.

We find the reference in the disputed language to “any interest” to be ambiguous and therefore are unable to ascertain the provision’s intent from its plain and ordinary meaning. In reading section 29 in its entirety and in light of its objects and consequences, we believe the disputed language does not confer upon dissenting shareholders the same rights as other shareholders, but merely indicates that the rights previously afforded by the statute cease upon payment of the shares. By providing for the agreed-upon or adjudicated fair value to be determined as of the date prior to the date on which the vote was taken approving the merger and by providing for interest from that date to the date of the judgment, section 29 treats the dissenting stockholder as though he has sold his shares upon approval of the merger. The explicit triggering of the right to fair value and interest at this time in effect changes the dissenter’s status from that of shareholder to that of a creditor. The provision then indicates that the dissenter’s interest as such ceases upon payment.

As defendant argues, the practical effect of plaintiffs’ interpretation would be to allow the dissenting stockholder a double recovery by giving the dissenter interest on the fair value of his stock as though the dissenter had sold the stock on the date of the merger plus dividends declared after the vote as though the dissenter had retained his stock. It would grant the dissenter the benefits of stock ownership in the form of dividends for a certain time period, without the dissenter having to bear the corresponding risk of facing a reduction in the value of the shares. The more reasonable interpretation is that the drafters intended to provide the dissenter with an opportunity to opt out of a merger at a fair price, with the consequence being that the stockholder surrenders the rights normally associated with stock ownership.

This conclusion is supported by the court’s holding in Bauman v. Advance Aluminum Castings Corp. (1960), 27 Ill. App. 2d 178, 169 N.E.2d 382, in addressing the issue of whether a dissenter could dismiss his suit to determine the fair value of his shares under a virtually identical dissenter’s rights provision in the former Illinois Business Corporation Act (Ill. Rev. Stat. 1957, ch. 32, par. 157.73). The court found that “once having made such an election by commencing suit, [the dissenter] is bound to carry his suit through to a legal conclusion and he cannot dismiss his suit and resume his status as a stockholder.” (Emphasis added.) Bauman, 27 Ill. App. 2d at 184, 169 N.E.2d at 385; see also Flarsheim, 432 S.W.2d at 253 (stating that the clear intent of the Missouri statute, patterned after the former Illinois Business Corporation Act, “is to change the status of a dissenting shareholder to that of a creditor at least superior to the distributive rights of the remaining shareholders”).

Finally, we do not find persuasive plaintiffs’ citation to numerous legislative enactments expressly providing for the termination of shareholders’ rights on election to dissent to demonstrate that the omission of such an express provision here indicates an intent to retain all shareholder rights. It is noteworthy that none of these enactments provide stockholders with both the right to receive the fair value of their shares determined at the time of merger and post-merger dividends. (See Model Business Corp. Act, Annotated, §74 (1st Ed. 1980); Ill. Rev. Stat. 1987, ch. 73, par. 779 (the Illinois Insurance Code); Ala. Code §§10—2A—163(a), (d), (e) (1989); Alaska Stat. §§10.06.576(e), 10.06.580(f); Ariz. Rev. Stat. Ann. §§10-081(1), (L) (O) (1988); Ind. Code §§28-l-7-21(a), (c) (1980); Fla. Stat. §607.247(3) (1988); Del. Code Ann. tit. 8, §262(K) (1975); Mass. Gen. L. ch. 156B §§86-98 (1988); Ark. Stat. Ann. §4-27-1323(B) (1989); Colo. Rev. Stat. §§7-4-123, 7-4-124 (1989).) In fact, plaintiffs have not cited a single jurisdiction which so provides. It is more logical to conclude that, since plaintiffs’ interpretation would be a radical departure from other legislative provisions, the drafters would have expressly provided for such if they so intended.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      Following the merger, Republic Bank of South Chicago changed its name to South Chicago Savings Bank.

      Plaintiffs cite statutes from two jurisdictions which provide that dissenters may receive dividends pending payment for their shares, but the dividends are to be credited against the amount due to the dissenters for the value of their shares. See Ohio Rev. Code Ann. §1701.85(E) (Baldwin (1989)); Cal. Corp. Code §§1307, 1308 (Deering 1989).


author: JUSTICE RIZZI JUSTICE FREEMAN,

text:
    MARY FLYNN, Plaintiff-Appellant, v. IRENE RATHNAU, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—3671
    Opinion filed August 29, 1990.
    FREEMAN, J., specially concurring.
    William E. Reynolds and Edward F. Cozzi, both of Chicago, for appellant.
    Beverly, Pause, Duffy & O’Malley, of Chicago (James L. Rados, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Mary Flynn appeals from an order of the circuit court of Cook County which dismissed her complaint against defendant Irene Rathnau. On appeal, plaintiff contends that the trial court erred in granting defendant’s motion to dismiss on the basis that the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) barred a common-law action brought by plaintiff to recover for personal injuries allegedly resulting from the negligence of defendant. We affirm.

Flynn and Rathnau were both employees of the University of Chicago Press. Following work on November 24, 1987, plaintiff and defendant were involved in a car accident in the employee parking lot. As Rathnau was driving her car out of the parking lot it allegedly struck Flynn as she walked to her car. As a result of the accident, Flynn was injured and this lawsuit ensued.

On appeal, Flynn contends that her cause of action is not barred by the Illinois Workers’ Compensation Act. We disagree. Section 5(a) of the Workers' Compensation Act provides:

“No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).

An injury accidentally received by an employee while on the premises of his employer going to or from his employment by a customary or permitted route within a reasonable time before or after work is received in the course and arises out of the employment, and a common-law action based on the incident is barred by the Workers’ Compensation Act. (Chmelik v. Vana (1964), 31 Ill. 2d 272, 274, 279, 201 N.E.2d 434, 439.) Specifically, accidental injuries received on parking lots maintained by employers for the use of their employees are received in the course of and arise out of their employment. Chmelik, 31 Ill. 2d at 279; Pintur v. Germann (1989), 183 Ill. App. 3d 763, 767, 539 N.E.2d 443, 444.

In the present case, since the accident occurred between two employees in the parking lot following work, we believe that any alleged injuries were received in the course of and arose out of the parties’ employment. Thus, in our view, a common-law action to recover for these injuries is clearly barred by the Workers’ Compensation Act. We therefore conclude that the trial court did not err in dismissing the plaintiff’s complaint.

Accordingly, the order of the circuit court of Cook County is affirmed.

Affirmed.

WHITE, J., concurs.

JUSTICE FREEMAN,

specially concurring:

I agree with the majority’s affirmance of the dismissal of plaintiff’s complaint. However, I write separately because the majority resolves, sub silentio, the major issue between the parties, i.e., whether plaintiff adequately alleged that she was struck by defendant’s vehicle outside of their employer’s parking lot. The majority thus inadequately explains why plaintiff’s complaint was properly dismissed.

Plaintiff’s complaint alleged that, at the time of the accident, defendant was operating her vehicle “in an effort to exit” a certain parking lot and plaintiff was “walking to her automobile which was parked” in that same lot. The complaint further alleged that defendant’s automobile struck plaintiff “as the [defendant exited the parking lot.”

Defendant’s motion to dismiss, brought under section 2—619 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—619), alleged that plaintiff and defendant worked for the same employer and that the accident occurred in the employer’s parking lot as plaintiff and defendant were leaving their place of employment. Defendant filed an affidavit in support of the motion attesting to these facts. In responding to the motion, plaintiff did not file a counter-affidavit.

On appeal, plaintiff first contends that defendant’s mere allegation in her motion that the accident occurred in their employer’s parking lot, even if true, was insufficient to bring the accident under the purview of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138 et seq.). Plaintiff reasons that, for that to be the case, it must be shown that the danger causing injury to a covered employee was peculiar to the work or arose out of a risk to which the employee is exposed to a greater degree than the general public by reason of her employment. County of Cook v. Industrial Comm’n (1988), 165 Ill. App. 3d 1005, 520 N.E.2d 896.

With respect to the proof required to bring an accident within the purview of the Act, plaintiff notes that her response to the motion to dismiss argued that her complaint alleged that she was struck by defendant’s vehicle as she was walking down a public sidewalk at the point where it crossed a driveway leading to the employer’s parking lot. She concludes therefrom that, because the general public utilized the same walk to traverse the driveway of that lot, she was exposed to no greater degree of risk than the general public. In further support of her position, plaintiff cites the supreme court’s observation in Aaron v. Industrial Comm’n (1974), 59 Ill. 2d 267, 319 N.E.2d 820, that it had never held all parking lot injuries compensable under the Act regardless of the circumstances and that it is only when such injuries are incidental to the anticipated normal use of the parking lot that they arise in the course of employment, as required under the Act.

Aaron is of no assistance to plaintiff. In moving to dismiss the complaint, defendant did not merely rely on the fact that the accident with plaintiff occurred in their employer’s parking lot. Rather, she also alleged that it occurred as plaintiff and defendant were leaving their place of employment, plaintiff as a pedestrian and defendant as a motorist. Significantly, plaintiff did not contest this allegation, by affidavit or otherwise, in responding to defendant’s motion. Thus, I believe this allegation precludes any applicability of Aaron to this case. Given plaintiff’s failure to deny it, this allegation conclusively establishes that her injuries were incidental to the anticipated normal use of the parking lot. Thus, the fact that a parking lot accident is not per se within the ambit of the Act is unavailing to plaintiff.

The allegation which plaintiff asserts her complaint contained, i.e., essentially that she was struck by defendant’s vehicle outside of their employer’s parking lot, does not compel a contrary conclusion. No such explicit allegation appears in her complaint. Moreover, the allegations which do appear therein relating to how and where defendant’s vehicle struck plaintiff are insufficient to show that the accident did not arise out of and in the course of plaintiff’s employment. In construing those allegations as alleging that she was struck by defendant’s vehicle “as she was walking down a public sidewalk at the point where it crossed a driveway leading to the employer’s parking lot,” plaintiff has seriously misrepresented those allegations. They can in nowise be given the interpretation or construction which plaintiff gives them. As such, the principles articulated in County of Cook are of no assistance to plaintiff. Moreover, the case law cited by the majority conclusively establishes that an injury suffered by a plaintiff within the confines of her employer’s parking lot while she is leaving her employment, which defendant’s allegations and proof established and which plaintiff failed to refute, are compensable exclusively under the Act.

Plaintiffs second contention, which the majority does not address, is that the trial court abused its discretion in granting defendant’s motion based on an affidavit which allegedly misstated the location of the accident while her complaint and a police report made of the accident established that the accident was outside the purview of the Act. This contention is also meritless.

Plaintiff cites no authority to this court for her asserted right to rely on the allegations of her complaint in the face of an affidavit from defendant in support of her motion. However, it is clear from plaintiff’s motion to reconsider the trial court’s dismissal order, in which she made essentially the same argument, that she bases that asserted right upon Durham & Coon (1949), 338 Ill. App. 204, 86 N.E.2d 852 (abstract of opinion). Durham is of no assistance to plaintiff. Durham held, as plaintiff herself noted below, that now section 2 — 619 does not require a plaintiff to file a counteraffidavit to raise an issue of fact which already appears from a sworn complaint and a defendant’s affidavit in support a motion to dismiss thereunder. The problem with plaintiff’s reliance, albeit sub silentio, upon Durham is that neither she nor her attorney verified or certified her complaint as allowed under the Civil Practice Law. Ill. Rev. Stat. 1987, ch. 110, pars. 1 — 109, 2 — 605.

Moreover, given the well-settled rule that police reports are inadmissible as substantive evidence given their hearsay nature (see, e.g., Walls v. Jul (1969), 118 Ill. App. 2d 242, 254 N.E.2d 173), plaintiff’s reliance on the police report of her accident to contradict defendant’s affidavit is unavailing. Finally, plaintiff is correct that a complaint should not be dismissed unless it clearly appears that no set of facts can be proved under the pleadings which would entitle the plaintiff to relief. (Gregor v. Kleiser (1982), 111 Ill. App. 3d 333, 443 N.E.2d 1162.) However, that rule does not mean, as plaintiff implies, that, in making that determination, a trial court is required to give the allegations of an unsworn complaint greater weight than allegations of a motion to dismiss supported by a sworn affidavit. I believe that plaintiff’s complaint was properly dismissed for all of the foregoing reasons.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY ALLEN, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—0910
    Opinion filed August 30, 1990.

      James W. Reilley, of Des Plaines, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Patrick J. Finley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, Roy Allen, defendant, was found guilty of possession of cannabis with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 705(e)), possession of cocaine with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)), and unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24—1). He was sentenced to concurrent terms of 25 years for possession of cocaine with intent to deliver, seven years for the possession of cannabis with intent to deliver, and five years for the unlawful use of a weapon by a felon. The court also ordered that the 25-year sentence was to run consecutively with a four-year sentence imposed in another case.

On appeal, defendant raises the following issues: (1) whether the trial court erred in denying his motion to suppress; (2) whether sections 5—8—4(h) and 5—8—4(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—8—4(h), (i) (hereinafter the Code)) are constitutional; and (3) whether the court abused its discretion in sentencing defendant to a term of 25 years for the possession of cocaine with intent to deliver.

We affirm.

At defendant’s suppression hearing, Chicago police officer John Tuttle testified that at approximately 9:30 a.m. on March 14, 1987, he responded to a call that a man with a gun was holding a woman at 30 East Division Street, apartment 5-East, in Chicago. Officer Tuttle proceeded to the scene where, upon exiting the elevator on the fifth floor, he observed Patty Pearson emerge from the stairwell with a bloody face. Officer Tuttle testified that there were also two other officers on the scene.

When Pearson saw the officers, she exclaimed that “there is a man over there with a gun” and pointed to apartment 5-East. There is some question as to whether Pearson told Officer Tuttle that defendant had beat her or whether she told him “they” had beat her. Officer Tuttle then proceeded to apartment 5-East. After knocking at the door twice without response, defendant finally opened the door to the apartment on the third knock. When defendant opened the door, Officer Tuttle noticed that defendant had a gun in his hand. A woman, Marie Altman, was standing behind defendant.

Defendant dropped his gun inside of the apartment and was then arrested. Officer Tuttle retrieved the gun, which was dropped approximately three feet inside of the doorway. At one point in his testimony, Officer Tuttle stated that while he was retrieving the gun, Pearson told him that there was another person inside of the apartment other than defendant and Altman. However, at another point in his testimony, he stated that Pearson had already been taken to the hospital when he retrieved the gun.

Officer Tuttle then entered the apartment with several other officers in search of this third party. While in the closet of one of the bedrooms, Officer Tuttle discovered weapons, clothing with the tags still attached, and camera equipment. In another bedroom he discovered large stacks of boxes and electronic equipment. He also found more weapons in the closet of that room.

In a third room in the apartment, which had been locked, Officer Tuttle observed plastic garbage bags filled with crushed green plants. Based on prior experience, Officer Tuttle believed that the bags contained marijuana. A safe, electronic equipment, and two attache cases were also found in the room.

A dog from the canine unit was later brought in to determine whether there were narcotics inside the safe. The dog’s handler informed Officer Tuttle that there were narcotics in the safe after observing the dog barking and sniffing at the safe.

Officer Robert Dworak corroborated Officer Tuttle’s testimony in that he observed Pearson standing in the stairwell with blood on her face; that Pearson pointed in the direction of apartment 5-East and exclaimed that “they” were in there; that defendant was observed with a revolver in his hand and that a woman was standing behind him when defendant opened the door; and that he entered the apartment with Officer Tuttle and several other officers. Officer Dworak did not participate in the search of the apartment.

Officer Jacqueline Niccoli, who arrived after several officers had already entered the apartment, also corroborated Officer Tuttle’s testimony in that she observed blood on Pearson’s face; that Pearson stated that a third person was in the apartment; that a green leafy substance was observed in a large plastic bag; and that she observed a dog from the canine unit howl and scratch at the safe. Officer William Tremore, Officer Niccoli’s partner, testified that he also observed what appeared to be marijuana in clear plastic bags in defendant’s apartment.

The trial court made specific findings of fact including that there was probable cause to arrest defendant. The court also found that the seizure of the gun, the cocaine, marijuana and the safe was proper. However, the court found that the seizure of the noncontraband items was not supported by probable cause and granted defendant’s motion to suppress with respect to the noncontraband items.

Defendant was found guilty, in a stipulated bench trial, of possession of cannabis with intent to deliver, possession of a controlled substance with intent to deliver, and illegal use of a firearm by a felon. He was sentenced to 25 years on the possession of a controlled substance with intent to deliver, which was to be served consecutively with a four-year sentence imposed in another case. He was also sentenced to concurrent terms of seven years for the possession of cannabis with intent to deliver and five years for the illegal use of a firearm by a felon. It is from this decision that defendant appeals.

Defendant first argues that the trial court erred in denying his motion to suppress evidence. He contends that his warrantless arrest was without probable cause. Probable cause is determined by the facts and circumstances of each case as they are known to the arresting officer at the time of the arrest. (People v. Robinson (1976), 62 Ill. 2d 273, 276-77.) Facts and circumstances must exist to warrant a reasonable man to believe that the offense was committed by the arrestee. (People v. Fuller (1986), 141 Ill. App. 3d 737, 742.) The trial court’s findings of probable cause will not be disturbed unless manifestly erroneous. People v. Clay (1984), 124 Ill. App. 3d 140, 148.

We do not find that the trial court’s decision was manifestly erroneous when it found that there was probable cause to arrest defendant. Defendant argues that Officer Tuttle’s testimony was incredible because he contradicted himself when at one point he testified that Pearson stated that defendant beat her and at another point he testified that Pearson stated that “they” beat her. Defendant also notes that although the police officers responded to a call to come to the scene because a man was holding a woman with a gun, they did not know the identity of the victim or the perpetrator. Defendant argues that these circumstances would not support a finding of probable cause, but, rather, constitute mere suspicion, which is not sufficient to justify a warrantless arrest. (See People v. Fletcher (1978), 66 Ill. App. 3d 502.) We disagree.

The facts reveal that when Officers Tuttle and Dworak arrived at the scene they observed Pearson standing in the stairwell with blood on her face. Pearson pointed to apartment 5-East and explained that the perpetrators were in that apartment. When defendant finally opened the door to the apartment, after the officers had knocked three times, he was holding a gun. The fact that there were slight inconsistencies in Officer Tuttle’s testimony or that the perpetrator was not identified by the police dispatcher is inconsequential under the facts in this case. We, therefore, find that the trial court properly ruled that there was probable cause to arrest defendant.

Next, defendant argues that even assuming, arguendo, that the arrest was lawful, the warrantless seizure of the gun was outside of the scope of an exception to the warrant requirement. The warrantless search of an arrestee is justified if that search is conducted in the area of the arrestee’s immediate control. (Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.) If the evidence that is seized is outside of the arrestee’s immediate control, the seizure is valid if the items are inadvertently discovered in plain view in a place where the police have a right to be and there is probable cause to believe that the items constitute proceeds or the instrumentality in a crime. Coolidge v. New Hampshire (1971), 403 U.S. 443, 465-66, 29 L. Ed. 564, 582-83, 91 S. Ct. 2022, 2037-38.

In the instant case, the gun was, arguably, seized in an area within defendant’s immediate control. However, even if assuming, arguendo, that the gun was seized in an area not within defendant’s .immediate control, the seizure clearly falls within the plain view exception as enunciated in Coolidge. Defendant, on the other hand, argues that pursuant to Vale v. Louisiana (1970), 399 U.S. 30, 26 L. Ed. 2d 409, 90 S. Ct. 1969, if a warrantless search of a house incident to an arrest is to be upheld, that arrest must take place inside of the house. In the instant case, defendant argues that the arrest took place outside of the house and therefore the seizure of the gun was not valid. We disagree.

There is some question as to whether the arrest took place inside or outside of the apartment. Defendant contends that the arrest took place outside of the apartment. The State maintains that the gun, which was found inside of the apartment, was seized contemporaneously with defendant’s arrest. The State further clarified this issue in oral arguments before this court when it pointed out that the arrest did, in fact, take place within the apartment. We, therefore, find Vale inapplicable to the facts in this case.

Defendant also contends that the warrantless entry into his apartment subsequent to his arrest was outside of the scope of the exigent circumstances exception to the warrant requirement. “[Pjolice may make a warrantless entry into private premises based on circumstances confronting them at the time of entry indicating that an emergency situation exists.” People v. Lewis (1979), 75 Ill. App. 3d 259, 276.

We find that the officers’ entry into defendant’s apartment was proper under the exigent circumstances exception as the officers were under the impression that there might have been another armed offender in the apartment.

Defendant further contends that even if the officers’ entry into the apartment was valid under the exigent circumstances exception, the search of the locked closet and seizure of the items therein, including some briefcases, was beyond the scope of the exception. We also find this argument to be without merit.

Defendant was found guilty of possession with intent to deliver marijuana and cocaine. These substances were found in a safe and on a nightstand. We agree with the State that since no evidence was introduced regarding the briefcases or their contents, any error regarding the seizure of the briefcases was harmless pursuant to Chapman v. California (1967), 386 U.S. 18,17 L. Ed. 2d 705, 87 S. Ct. 824.

We find that the officers’ entry into the locked closet in which the safe was found was also justified under the exigent circumstances exception, since it is reasonable to believe that the other offender may have sought refuge in this closet. We also find that the seizure of the safe was justified in that, as the State argues, its discovery would have been inevitable since it was in plain view and defendant allegedly admitted that the safe contained drugs and money. “[WJhere the evidence of an offense obtained illegally would inevitably have been discovered lawfully, it will be considered admissible.” (People v. Hoskins (1984), 101 Ill. 2d 209, 221.) The trial court, therefore, did not err in denying defendant’s motion to suppress.

The second issue defendant raises for our review is whether sections 5—8—4(h) and 5 —8—4(i) of the Code (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—8—4(h), (i)) violate the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, §1) if construed as mandatory.

Section 5 — 8—4(h) provides:

“If a person charged with a felony commits a separate felony while on pre-trial release, any sentence imposed upon conviction of that separate felony shall be consecutive to any sentence imposed upon conviction of the original felony.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(h).

Section 5 — 8—4(i) provides:

“If a person admitted to bail following conviction of a felony commits a separate felony while free on bond, any sentence following conviction of the separate felony shall be consecutive to that of the original sentence for which the defendant was on bond.” Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(i).

Defendant argues that the legislature is attempting to mandate the imposition of sentences which is an exclusive function of the judiciary. Although the power to impose a sentence is a function of the judiciary, the legislature has the power to enact laws governing judicial practice which do not unduly infringe upon the inherent powers of the judiciary. (People v. Davis (1982), 93 Ill. 2d 155, 161.) However, a statute should be interpreted so as to avoid doubts as to validity. People v. Taylor (1984), 102 Ill. 2d 201, 207.

There is a strong presumption that a statute is constitutionally valid. The party challenging the statute has the burden of showing that it is unreasonable, clearly arbitrary and has no foundation in police power. (People v. Belton (1989), 184 Ill. App. 3d 1001, 1013.) We do not find that defendant has met this burden.

Sections 5 — 8—4(h) and 5 — 8—4(i) were reasonably designed to remedy the threat posed by persons who commit crimes while on bond. (See People v. Dowthard (1990), 197 Ill. App. 3d 668; People v. Brown (1989), 182 Ill. App. 3d 491.) The court in Belton found that mandatory application of section 5 — 8—4(h) did not violate the separation of powers doctrine, since the purpose of the section (to remedy the threat posed by persons on bond) was constitutionally valid. The court was also in accord with the State’s argument that the section does not infringe upon judicial authority because it allows the court broad discretion in determining the duration of each sentence within permissible bounds. (Belton, 184 Ill. App. 3d at 1014.) We agree with the Belton court and find that section 5 — 8—4(h) does not violate the separation of powers. Moreover, we find that this rationale and holding would also apply to section 5 — 8—4(i).

Finally, defendant argues that the trial court abused its discretion by sentencing defendant to an excessive term of 25 years on one of the counts. Defendant claims that the trial court failed to give adequate consideration to defendant’s rehabilitative potential and that the State improperly apprised the court of a pending felony charge.

The court stated, with respect to the pending felony charge, that it would not consider the charge. Further, we find nothing in the record which would indicate that the trial court was influenced by this charge in its determination of defendant’s sentence.

The trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. (People v. Partin (1987), 156 Ill. App. 3d 365, 373.) It is not necessary for the trial court to articulate or assign a value to each fact upon which it relies in determining a sentence. People v. Lucien (1982), 109 Ill. App. 3d 412, 420.

In the instant case, we find that the trial court did consider the opportunity for defendant’s rehabilitation, among other mitigating factors. The court also considered the seriousness of the offense. Under the circumstances of this case, we do not find that the trial court abused its discretion in sentencing defendant. Absent an abuse of discretion, the trial court’s decision will not be disturbed. People v. Perruquet (1977), 68 Ill. 2d 149, 153.

Accordingly, the decision of the trial court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nieholls (1978), 71 Ill. 2d 166.

Affirmed.

LINN and JIGANTI, JJ., concur.