author: JUSTICE EGAN

text:
    WALTER CIOCHON, Plaintiff, v. PHILLIP BELLINO, Defendant and Third-Party Plaintiff-Appellant (The City of Chicago, Third-Party Defendant-Appellee).
    First District (2nd Division)
    No. 1—88—0448
    Opinion filed June 13, 1989.

      Law Offices of Thomas R McLaughlin, of Chicago (Thomas P. McLaughlin and Gary L. Kennedy, of counsel), for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Walter Ciochon, sued the defendant, Phillip Bellino, alleging that on September 20, 1983, at approximately 8 p.m., he was struck by the automobile driven by the defendant when the plaintiff was crossing the street near 5700 West Fullerton in Chicago. Bellino brought a third-party action in contribution against the City of Chicago alleging that the City “was in control and responsible for the maintenance of Fullerton Avenue and the adjacent street lights in the area at the time of the accident.” It further alleged that the City was negligent in maintaining the streetlights in the following manner: (1) improperly maintaining the lighting; (2) improperly allowing the darkened condition to remain for an unreasonable length of time; (3) failing to repair or replace the lights which the City knew or should have known were out; and (4) failing to warn of the dangerous condition.

The City’s answer denied the allegations of negligence; but the City did not plead that it was immune from liability. Thereafter, the City moved for summary judgment on the ground that section 3 — 105 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 105) (Tort Immunity Act) granted it immunity from suit for the effects of wind and rain on public streets. The motion asserted that the reason that the City did not replace or repair the lights was that it was not an isolated incident but a disruption of current requiring repair by Commonwealth Edison. The City supported its motion with the deposition of Officer Ronald Opasinski of the Chicago police department and the affidavit of Bernard O’Hallaren, an engineer for the City of Chicago Bureau of Electricity.

Officer Opasinski testified that it was raining hard for at least an hour before the accident and there were numerous reports of lights out throughout the police district for about an hour before the accident. He and his partner were just north of the accident site when they were notified of its occurrence; they arrived at the scene within two minutes. He found the plaintiff pedestrian in the street in the middle of the block. The site was dark because of the nightfall, the pouring rain and the absence of lighting. He had no idea how long the lights had been out at that particular location or why they were not functioning. He observed that the lights were out for several blocks in either direction as well. Officer Opasinski reported that the lights were out to the police radio dispatcher, but he did not know whether the dispatcher notified anyone else. He also wrote in his police report that “the street light at this location [was] burned out,” meaning that the lights were out for the entire block. He did not know whether there had been any prior reports about lights being out at the scene.

In his affidavit, the sufficiency of which will be discussed later in this opinion, O’Hallaren stated that the Bureau of Electricity had not received any reports of lights being out in the 5700 block of West Fullerton during a two-year period which included the date of the accident.

The third-party plaintiff moved to strike the motion for summary judgment on several grounds: the O’Hallaren affidavit did not comply with Supreme Court Rule 191 (87 Ill. 2d R. 191); the third-party defendant City could not rely on section 3 — 105 because it did not raise the statute in the City’s pleadings; the City, in its answer, already admitted ownership and control of the streets and the adjacent lights; and Opasinski’s report showed that the City, through its agent, Opasinski, had received notice that the streetlights were out and did nothing to remedy the problem. The trial court granted the motion to strike only as to one paragraph of the O’Hallaren affidavit, which stated that Commonwealth Edison, not the City, was responsible for repairing the outage and restoring service. The court then granted the City’s motion for summary judgment. Since no report of proceedings is part of the record, we are unable to determine the basis for the court’s ruling.

In order for the third-party defendant City to be held liable in contribution to the third-party plaintiff, it must be shown that the City is “subject to liability in tort” to the plaintiff. (Ill. Rev. Stat. 1983, ch. 70, par. 302(a).) The City contends that it owed no duty to the plaintiff pedestrian and, therefore, no cause of action in contribution could lie.

The question of whether a duty exists is one of law for the court to decide and may be resolved on summary judgment. (Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535; Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888.) Summary judgment is appropriate only where the pleadings, depositions, admissions on file and affidavits present no genuine issue of material fact. Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.

The third-party plaintiff asserts that the City owed the pedestrian plaintiff a duty to maintain the streetlights in a functioning condition and to warn if they were not operating properly. Generally, under section 3 — 102 of the Tort Immunity Act, a local public entity such as the City owes the duty of ordinary care in maintaining its property. (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 102.) Section 3 — 105, upon which the City relies, creates an exception and grants immunity where the injury is “caused by the effect on the use of streets *** of weather conditions as such.” (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 105.) However, there is no immunity where the condition was the result of “physical damage to or deterioration of streets” (Ill. Rev. Stat. 1983, ch. 85, par. 3 — 105), provided that the local public entity has “actual or constructive notice of the existence of such a condition that is not reasonably safe in sufficient time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1983, ch. 85, par. 3-102(a).

The City first argues that the streetlights being out was the effect of “natural causes beyond the power of the City to prevent or control” (Lansing v. County of McLean (1977), 45 Ill. App. 3d 91, 359 N.E.2d 165, aff’d in part, rev’d in part on other grounds (1978), 69 Ill. 2d 562, 372 N.E.2d 822), specifically, a severe storm which blacked out the streetlights throughout the area. Even assuming that such an occurrence would constitute an “effect of weather conditions” rather than “physical damage to or deterioration of” the streetlights, the City has not produced adequate evidence to warrant granting summary judgment on this basis. In order to obtain summary judgment the City must show that there is no genuine issue of material fact that the outage was caused by a system-wide blackout caused by weather conditions. The only evidence the City offered in the circuit court was that it had only been raining about an hour, that all the lights on the block and on a few adjacent blocks were out and that no lights had been reported out from June 1, 1982, to June 30, 1984, in the 5700 block of West Fullerton. The City also points to an ordinance which granted to Commonwealth Edison the right to provide electricity in Chicago, and which this court may judicially notice. While these facts may support the inference that there was a blackout, they do not eliminate the contrary inference that the absence of lights was due to “physical damage to or deterioration of” the streetlights themselves. Therefore, summary judgment could not be granted on this basis.

The City also asserts that it cannot be held liable because it did not have actual or constructive notice of the defect in sufficient time to enable it to have corrected it or provided adequate warning of it. Lansing v. County of McLean (1978), 69 Ill. 2d 562, 372 N.E.2d 822; Horton v. City of Ottawa (1976), 40 Ill. App. 3d 544, 352 N.E.2d 23.

To establish the lack of notice the City relies principally on the O’Hallaren affidavit. The trial court struck paragraph seven for reasons that do not appear of record. Since the third-party plaintiff asserts that the entire affidavit should have been stricken, we will set it out in full:

“I, BERNARD O’HALLEREN, being duly sworn on oath, do hereby, depose and state as follows:
1. I am employed as an Engineer (Engineering Tech Five) by the City of Chicago Bureau of Electricity.
2. I have worked in this position for the last (12) years. My duties include obtaining records from our files, reviewing them and at times testifying at depositions and trials.
3. At the request of the Corporation Counsel’s Office, I obtained records of repair of street lights for the area around the 5700 block of West Fullerton Avenue for the period between June 1,1982 and June 30,1984 (attached as Exhibit 1).
4. These records are kept in the ordinary course of business of the Bureau of Electricity.
5. I have knowledge of our filing system and the records were removed at my direction from the proper files.
6. For this two year period, there are no reports of street lights being out in the 5700 block of West Fullerton.
7. In the case of a power outage, the City of Chicago is not responsible for repairing the outage and restoring service; Commonwealth Edison is.
8. If called to testify at trial, I would so testify.”

The third-party plaintiff asserts that the affidavit does not meet the requirements of Supreme Court Rule 191. (87 Ill. 2d R. 191.) First, the - third-party defendant argued that although it is apparent that O’Hallaren relied on other records, no sworn or certified copies of them were attached. We initially observe that it is unclear from the record, the briefs and the arguments of counsel whether the third-party plaintiff is arguing that there were no records attached to the affidavit or that the records were attached but not certified or sworn to. The City asserts that it makes no difference, citing Beals v. Huffman (1986), 146 Ill. App. 3d 30, 496 N.E.2d 281, for the proposition that the failure to attach papers on which an affiant relies in making an affidavit is merely a “technical insufficiency” which should be disregarded when an affiant apparently would be a competent witness at trial.

Beals, however, cannot be read so expansively. It appears that the records upon which the affiant relied in Beals were in fact a part of the record before the trial court, although attached to another affidavit. The cases upon which the Beals court relied support a narrow reading of its holding. In La Monte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70, and Wainscott v. Penikoff (1936), 287 Ill. App. 78, 4 N.E.2d 511, the courts merely held that the supporting documents need not themselves be sworn to or certified since they were incorporated by reference into the sworn affidavit which attested that the facts therein were true.

Therefore, in the present case, if the only objection were that the attached copies were not certified or sworn to, under Beals, the defeet would not warrant striking the motion as the sworn affidavit incorporates the reports and sufficiently attests to their accuracy. However, if the deficiency is that the copies were not attached at all to the affidavit or otherwise of record, this is not a mere technical violation but rather requires that those portions of the affidavit which refer to or rely upon the reports be stricken. Standard Oil Co. v. Lachemnyer (1972), 6 Ill. App. 3d 356, 285 N.E.2d 497.

Given the deficient state of the record, we are unable to determine which rule should apply. The record reveals that the initial affidavit attached to the motion for summary judgment does not have the records attached, even though they were referred to as “Exhibit 1.” Elsewhere in the record are copies of certain documents which could be the records to which the O’Hallaren affidavit referred; however, they are simply included without explanation. The parties in their briefs and in oral argument were unable to clarify this problem. It is the responsibility of the appellant to make certain that his challenge to the trial court’s ruling is coherent. Since the record does not explain the nature of the challenged defect, we must assume that there has been, at most, only a technical violation of Supreme Court Rule 191(a) and the denial of the motion to strike on this basis was correct. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

The third-party plaintiff challenges the affidavit on the ground that the affiant was not competent. In his motion to strike before the trial court, he only repeated the language of Supreme Court Rule 191(a) and asserted that the affiant could not “testify competently” to the matters set forth therein. On appeal, he specifically contends that the affiant is not competent because O’Hallaren was not the keeper of the records and the manner in which he obtained the records was not explained; and that no facts were offered to show how the records were originally gathered, by whom, the manner in which they were kept, the identity of the keeper, and the manner in which they were disseminated.

While we have some doubts that the affidavit meets the requirements of the supreme court rule, it is unnecessary for us to decide the question, since we conclude that acceptance of the affidavit does not, as a matter of law, resolve the issue of notice. The records are identified by O’Hallaren’s affidavit only as “records of repairs of street lights for the area around the 5700 block of West Fullerton Avenue for the period between June 1, 1982 and June 30, 1984.” Our own examination discloses that some are “Truck Reports” and others are “Defect Reports,” or “Street Light Trouble Reports.” Insofar as we can determine, they reflect work done by the department of electricity. We note that, significantly, most of the work done as shown on the “Defect Reports” was done without any complaint having been received. Similarly, most of the “Truck Reports” have no entry in the part of the report marked “Special Complaint.”

It is fairly inferable that a substantial part of the work done was to repair defects discovered by City employees themselves. The affidavit merely recites that the records disclose that “there are no reports [to the department of electricity] of street lights being out in the 5700 block of West Fullerton.” The absence of any reports to the department of electricity, however, may not be raised to the inescapable inference that there was also an absence of defects which existed for a sufficient period of time to put the City on notice. There is no evidence as to when the lights on the block of 5700 West Fullerton were last operating. There is no evidence of a system-wide power outage, for example, an affidavit from Commonwealth Edison to that effect. The City’s claim that the lights went out as the result of that evening’s system-wide outage may be an inference which could be drawn from the existing facts, but a contrary inference may also be drawn and the court cannot resolve the issue on a motion for summary judgment. (Lynge v. Kunstmann (1981), 94 Ill. App. 3d 689, 418 N.E.2d 1140.) That the third-party plaintiff failed to produce any evidence of burned out light bulbs or prove that the City had notice of the condition does not alter this result. The City is not entitled to summary judgment simply because its opponent has not yet proved his case. Rather, the City must, by well-pleaded facts, clearly establish its right to judgment. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295.) The City has failed to do so.

Accordingly, for the foregoing reasons, the order granting the third-party defendant’s motion for summary judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

HARTMAN and SCARIANO, JJ., concur.

       Justice Egan participated in this opinion prior to his assignment to the sixth division.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERNIE BELTON et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 1—86—0757,1—86—0758 cons.
    Opinion filed June 20, 1989.

      Steven Clark, Jeffrey A. Walker, and June Yvonne Wallace, all of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Lynda A. Peters, and David L. Studenroth, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendants were convicted at a bench trial of residential burglary. Before sentencing on this conviction, both defendants pleaded guilty to an earlier charge of possession of a stolen motor vehicle. The trial court then sentenced Ernie Belton to five years’ and Ralph Powell to four years’ imprisonment for the burglary, to run consecutively with the three-year sentence given both defendants for the possession charge. Defendants appeal, raising the following issues: (1) whether the trial court complied with Supreme Court Rule 402 (107 Ill. 2d R. 402) and determined that defendants’ pleas of guilty to the charge of possession of a stolen motor vehicle were knowing and voluntary; (2) whether defendants were proven guilty of possession beyond a reasonable doubt; (3) whether section 5 — 8—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)) violates due process and the doctrine of separation of powers, and whether the sentences given defendants violate the prohibition against ex post facto laws; (4) whether the trial court erred in making Belton’s sentences consecutive; and (5) whether the statute providing for the offense of possession of a stolen motor vehicle is unconstitutional.

Defendants were charged with two counts of theft and one count of residential burglary. During the hearing on their motion to dismiss the indictment, Belton testified that Powell came to his home at 635 West Barry in Chicago on November 1, 1985, at approximately 7 p.m. Defendants then went to a restaurant and later to a game room before returning to Belton’s apartment; at approximately 9:30 p.m., they went out again. As they exited the lobby of Belton’s building, they encountered Chicago police officer Albert Augustine, who asked them what they were doing. Belton replied that he lived in the building, and Augustine responded that they should go about their business. Powell corroborated this testimony; however, although Augustine stated that he went to 635 West Barry at 9:30 on November 1, 1985, to deal with a disturbance, he testified that he did not remember seeing Belton or Powell in the lobby at that time.

Belton further testified that, as defendants walked along Broadway towards a lounge at Addison and Broadway, approximately three minutes after they saw Augustine in the lobby, they noticed him driving a car north on Broadway. Powell saw the car turn onto Belmont. Augustine also testified that he turned north on Broadway after leaving the building. It began to rain, so defendants turned and began walking back towards Belton’s apartment. They went south on Broadway to Briar Place, then turned right on Briar and left down an alley, toward the gangway of Belton’s building. They stopped to urinate in the alley because the toilet in Belton’s apartment was not working.

While they were in the alley, Augustine pulled up in his car. According to Belton, he and Augustine recognized one another, and Augustine told Belton that he had seen defendants turn down the alley and had followed them. Augustine conducted a pat down search and found a knife on Belton; he then went to the area where Powell was “taking a leak” and searched the area behind a fence, where he found a television set, video recorder and a bag of old clothes. Belton claimed that Augustine then handcuffed both him and Powell, and beat Powell “because he said he was taking a leak.” Augustine called on his radio to determine whether there had been a burglary and, after learning there had been one at 614 Barry, he brought defendants to a parking lot near that address. Belton testified that Augustine began talking to a lady who claimed to have seen the burglars but, after looking at defendants, she indicated they were not the thieves.

In his testimony, Augustine denied telling defendants that he had followed them, denied that he had spoken to a woman at any time that night and stated that no one told him that he or she had seen the burglars. He testified that he and his partner were at Wellington and Broadway at approximately 10:30 p.m., on November 1, 1985, when they received a radio call that a burglary had just occurred. They proceeded north to Briar, and after turning left on Briar, as they passed an alley, they saw a black male, later identified as Powell, placing a television set behind a fence. Augustine backed the car up, shut off the lights, then pulled the car into the alley, where he saw two males walking toward him. He conducted a pat down search of Belton and found a small pocketknife as well as “other property” in a flap pocket in the waistband of his sweat pants. Augustine placed defendants under arrest and took them in his car to the area of 614 Barry, where he unsuccessfully “looked for witnesses.”

The trial judge denied the motion to dismiss the indictment. The parties then moved that relevant evidence taken in the motion to dismiss the indictment be incorporated with the evidence taken at trial. During the bench trial, Harold Gahan testified that he left his apartment at 614 Barry at 8 p.m. and returned at approximately 10:20 p.m. on the night of November 1, 1985. He saw that a television set, a video recorder and the cabinet in which they were stored were missing from the apartment, that the back door was open and that a stereo component was placed at the back door. Upon entering the master bedroom, he saw that a weight set in the room had been thrown on the waterbed, and that a pair of diamond cufflinks and a graduation ring were missing.

While waiting for the police, Gahan noticed that the screen on the left side front window was ripped open and that the frame of the front door was pulled away. When the police arrived, Gahan went to the back of the building and identified his television set, video recorder and cabinet. When his roommate, John Muller, arrived home they went to the police station, where Gahan identified his ring and cufflinks. Gahan stated that all their missing property was returned to them; however, Muller testified that he was missing a ring and a watch, that he had not noticed them missing until a month before trial, and that he was not certain whether they had been taken during the burglary.

Augustine testified that at approximately 10:30 p.m., he and his partner received a radio call that a burglary had just occurred at 614 Barry and that the offenders were possibly nearby. Augustine drove north on Broadway and turned left on Briar, which is one block north of Barry. He did not turn on Barry because he saw a squad car on that street. As he passed an alley, he saw a black male place a television set behind a fence. Augustine continued to testify to basically the same information he gave at the motion to dismiss the indictment. His partner, Bocconcelli, confirmed Augustine’s testimony.

Belton’s wife testified that on February 1, 1986, she went to the county jail and received the sweat pants Belton was wearing on the night of his arrest. She stated that the pants had no pockets; however, she also admitted that the pants were in Belton’s possession from the time of his arrest until the date she received them.

The judge found defendants guilty of residential burglary. At the sentencing hearing, both defendants pleaded guilty to a prior charge of possession of a stolen motor vehicle. The trial judge then sentenced Belton to five years’ and Powell to four years’ imprisonment for the burglary, to run consecutively with a three-year sentence for the possession of a stolen motor vehicle for each defendant. They now appeal.

Defendants first argue that the trial court erred in not determining whether their guilty pleas were knowing and voluntary, pursuant to Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, and Supreme Court Rules 402(a) and (b). However, defendants failed to bring a motion to withdraw their guilty pleas and to vacate the judgment, as required by Supreme Court Rule 604(d), which provides in pertinent part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment.” (107 Ill. 2d R. 604(d).)

Such a failure “is a jurisdictional defect which prevents this court from entertaining an appeal from that judgment unless the defendant has not been properly admonished *** that he must file such a motion in order to preserve his right to appeal.” (People v. Potts (1985), 136 Ill. App. 3d 1059, 1061, 484 N.E.2d 306; see also People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218; People v. Stacey (1977), 68 Ill. 2d 261, 369 N.E.2d 1254; People v. Young (1977), 56 Ill. App. 3d 106, 371 N.E.2d, 646.) Defendants were properly admonished in this case; therefore, this matter is not properly before this court.

However, even if we were to consider defendants’ contentions, we would decline to grant them the relief they seek, for Supreme Court Rules 402(a) and (b) provide as follows:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. *** 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.” 107 111. 2d Rules 402(a), (b).

During the sentencing hearing, the judge had the following colloquy with defendants:

“THE COURT: All right. Mr. Belton and Mr. Powell, you are each charged with possession of a stolen motor vehicle. How do you plead to that charge, guilty or not guilty?
DEFENDANT BELTON: Guilty.
DEFENDANT POWELL: Guilty.
THE COURT: You each understand in pleading guilty you are waiving your right to any kind of trial. You know the law. You could have what is known as a bench trial, where I hear the evidence without a jury or you could have what is known as a jury trial, that is a proceeding wherein 12 citizens would be selected to occupy that jury box. They would hear all the evidence in the case and they would make a determination of your innocence or guilt based on the evidence. But by pleading guilty you are both indicating to me that you do not want either a bench trial or a jury trial. You are submitting yourself to the mercy of this Court without a trial. Is that your understanding, Mr. Belton?
DEFENDANT BELTON: Yes, sir.
THE COURT: Mr. Powell?
DEFENDANT POWELL: Yes.
THE COURT: You understand the nature of the charge; I am going to read from this document I have in front of me called an “Information.” It states that on the 1st day of May, 1985, you each committed the offense of possession of a stolen motor vehicle in that each of you not being entitled to possession of a motor vehicle, that being a Honda motorcycle, that you each had possession of that vehicle, being the property of a Roger Warner, spelled W-a-r-n-e-r, and that each possessed that vehicle knowing it had been stolen. That is the way the formal charge against you reads. Do you understand that, Mr. Belton?
DEFENDANT BELTON: Yes, sir.
THE COURT: Mr. Powell?
DEFENDANT POWELL: Yes, sir.
THE COURT: Do you understand on your plea to that charge, that I could sentence you to go to the penitentiary anywhere between three and seven years. It is a Class 2 felony. There is a provision that if I did send you to the penitentiary, you would be given one day of good-time credit for each day that you serve. What that means very simply on a three-year sentence with good-time credit, you could be out in a year and a half. On a seven year sentence, you would be out in three and a half years. There is also a provision that would place you on what is known as mandatory supervised release for a period of two years. What that means is after having served your time in the penitentiary, you still would be under the supervision of the prison authorities for a period of two years after having served your sentence.
Do you understand that, Mr. Belton?
DEFENDANT BELTON: Yes, sir.
THE COURT: Mr. Powell?
DEFENDANT POWELL: Yes, sir.
THE COURT: Do each of you understand in pleading guilty of this particular charge, because of the finding of guilty on the other charge, residential burglary, I could have this sentence run concurrent or rather consecutive to the other sentence; and what that means is after serving your time on the sentence which I will give you on the residential burglary, you would then start serving time on the sentence that I place
against you on the possession of a stolen motor vehicle.
* * *
Do each of you understand that? Mr. Powell?
DEFENDANT POWELL: Yes, sir.
THE COURT: Mr. Belton?
DEFENDANT BELTON: Yes, sir.
THE COURT: Understanding everything I told you, do you still wish to plead guilty to this charge of possession of a motor vehicle? Mr. Belton?
DEFENDANT BELTON: Yes, sir.
THE COURT: Mr. Powell?
DEFENDANT POWELL: Yes, sir.”

Defendants maintain that, by saying “I could have this sentence run concurrent or rather consecutive,” the judge gave them the impression that he could make their sentences either concurrent or consecutive, when in actuality he had to make them consecutive. (HI. Rev. Stat. 1987, ch. 38, par 1005 — 8—4(h).) According to defendants, the judge misrepresented the law. They also claim that the judge failed to advise them of their right to persist in a plea of not guilty and that they waived their right to confrontation and their privilege against self-incrimination by pleading guilty, as well as failed to ascertain whether their plea was the product of threats of coercion.

The State responds that Boykin does not mandate specific admonitions, but requires only that the record affirmatively disclose that a defendant who pleads guilty does so “understandingly and voluntarily” (People v. Reeves (1971), 50 Ill. 2d 28, 29, 276 N.E.2d 318); that the purpose of Rule 402 is to make an affirmative showing, in the record, “that a defendant voluntarily and understandingly enters his plea of guilty before it is accepted in accordance with the guidelines established by the Supreme Court in Boykin (People v. Taylor (1982), 110 Ill. App. 3d 1140, 443 N.E. 2d 699; see also People v. McCoy (1979), 74 Ill. 2d 398, 385 N.E. 2d 696); that Rule 402 requires only substantial and not literal compliance (People v. Krantz (1974), 58 Ill. 2d 187, 317 N.E .2d 559); and that the judge’s remarks must be read in a practical and realistic manner to determine whether an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule. (Taylor, 110 Ill. App. 3d at 1147.) The State further contends that it is clear from the entire record that the trial court substantially complied with Rule 402, and that defendants’ pleas were knowing and voluntary. The State also asserts that defendants had just stood trial on the burglary charge, knew what the right to trial encompassed, and therefore knew what they were waiving. It also notes that defendants never made any claim that their pleas were coerced.

We apprehend nothing in Boykin or in Rule 402 which requires a trial judge to catechize defendants on the requirements thereof. Here, defendants were advised as to their right to a trial, the nature of the charges against them, and the maximum and minimum sentences which could be imposed. After each admonishment, defendants indicated that they understood what the judge was imparting to them. In explaining consecutive sentences to defendants, the judge made it clear that his comment “I could have the sentence run concurrent[,] rather consecutive to the other sentence” was a misstatement, which he satisfactorily remedied. Defendants complain that the judge said “I could” rather than “I must” have them run consecutively; however, considering all the judge’s comments (People v. Taylor (1982), 110 Ill. App. 3d 1140, 443 N.E.2d 699), we hold that there has been substantial compliance with Rule 402 and that defendants were adequately informed with respect to sentencing. In this regard, we note that the sentence for residential burglary is not less than four years and not greater than 15 years (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 3, 1005 — 8—1), and the sentence for possession of a stolen motor vehicle is not less than three years and not more than seven years. (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103; Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1.) Defendants did not plead pursuant to an agreement with the State and, as their combined sentences are still within the maximum sentence for residential burglary, we cannot say that defendants were prejudiced by the court’s failure to inform them in haec verba of a mandatory consecutive sentence. People v. Baker (1985), 133 Ill. App. 3d 620, 479 N.E.2d 372.

Defendants next argue that the State failed to prove that they knowingly and without authority entered the dwelling of another with the intent to commit a felony or theft (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3(a)), and therefore did not prove that they were guilty of residential burglary. Defendants maintain that the only evidence the State presented was that they were in possession of stolen property on the same day that the burglary occurred.

In People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160, the supreme court held that recent and exclusive possession of items stolen in a burglary, without reasonable explanation, cannot by itself give rise to an inference that the possession was obtained by burglary. Use of this inference would not infringe upon due process rights if: (i) there is a rational connection between the accused’s recent possession of property taken in the burglary and his participation in the burglary; (ii) his guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (iii) there was evidence corroborating defendant’s guilt. 84 Ill. 2d at 424.

Defendants maintain that their guilt of the burglary in this case does not flow more likely than not from their recent possession of burglary proceeds, and that there was not corroboration of their guilt. They emphasize that the burglary could have occurred any time between 8 p.m., when Gahan left his apartment, and 10:20 p.m., when he returned. They note that they encountered Augustine in the lobby of Belton’s building at 9:30 p.m., and argue that they could not have been burglarizing Gahan’s apartment at that time. They suggest that someone else could have left the stolen property in the alley long before they came on the scene, and they “could have easily happened upon the loose goods and picked them up unknowingly.” In support of their contention that the evidence does not corroborate their guilt, defendants note that no fingerprints were discovered and that some of Muller’s missing property was not recovered, citing People v. Ross (1981), 103 Ill. App. 3d 883, 431 N.E.2d 1267. In that case, Ross was found in possession of stolen stereo equipment; however, there was no evidence of forcible entry into the victim’s apartment, or that defendant had entered her apartment or even been in her building that day; the burglary could have occurred any time during the nine hours before defendant was found with the stereo; and defendant’s possession was not entirely unexplained, as he claimed he had found the stereo. The appellate court reversed his conviction for burglary, holding that the first two elements of Housby were not satisfied. 103 Ill. App. 3d at 886-87.

The State responds that circumstantial evidence may be used to prove a burglary (People v. Richardson (1984), 104 Ill. 2d 8, 470 N.E.2d 1024; People v. Terrell (1984), 99 Ill. 2d 427, 459 N.E.2d 1337), and that the only inference that can be drawn from the evidence in the instant case is that defendants committed the burglary. It asserts that defendants’ testimony that they stopped in the alley, in the rain, to urinate, even though only a minute away from Belton’s apartment, is “unreasonable,” and it argues that, although “an accused need not justify or explain his presence at or near the scene of a crime, *** if he chooses to do so while denying his guilt, he must tell a reasonable story or be judged by the improbability of his explanation.” (People v. Delp (1980), 85 Ill. App. 3d 463, 466, 406 N.E.2d 903.) It maintains that here there was evidence of forcible entry and that shortly after the burglary took place defendants were found a block away in possession of many items taken during the burglary. Thus, it contends, their guilt is more likely than not to flow from their possession of the burglary proceeds. Additionally, the State argues, the police officer’s testimony corroborates defendants’ guilt.

The trial judge, as the trier of fact, observed the witnesses and heard their testimony, and most assuredly resolved any issues of credibility in favor of the State. It is not for us to supplant the judgment of the trier of fact on questions of credibility. (People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323.) Augustine testified that minutes after receiving notice of burglary having “just occurred” he saw Powell place a television set behind a fence in the alley, and he recovered stolen property from both defendants. This evidence corroborates defendants’ guilt. Moreover, based on Gahan’s testimony, the trial judge could reasonably have concluded that the burglary had not occurred earlier in the evening, but rather was in progress when Gahan returned home (e.g., a stereo component was by the back door). Defendants’ due process rights were not violated in this case, and therefore we affirm their convictions on this issue.

Defendants next argue that section 5 — 8—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(h)) violates due process and the doctrine of separation of powers, and that their sentences violate the constitutional prohibition against ex post facto laws. Section 5 — 8—4(h), which became effective on September 25,1985, provides as follows:

“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).

Defendants maintain that the statute presumes that one who commits a felony while on pretrial release for another felony should be prevented from committing further criminal conduct against the public by means of consecutive sentence, without consideration of the seriousness of the felonies involved or the prior criminal record of the individual involved. They claim that this presumption is mandatory, and thus the presumed fact, that the public must be protected by means of consecutive sentencing, must flow beyond a reasonable doubt from the proven fact, that an individual has committed a felony while on pretrial release from another felony charge, in order to satisfy due process requirements. (Ulster County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 90 S. Ct. 2213.) Defendants further claim that the presumed fact does not so flow. They note that section 5 — 8—4(b) provides as follows:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(b).)

They assert that trial judges must be free to give individualized consideration in making sentencing decisions.

Defendants also contend that the power to impose sentence is a judicial function (People v. Davis (1982), 93 Ill. 2d 155, 442 N.E.2d 855), and that the legislature usurped that power by enacting section 5 — 8—4(h). Additionally, they maintain their sentences violate the prohibition against ex post facto laws, because defendants committed the first felony before section 5 — 8—4(h) was in effect, yet it was applied to them. At the time they committed the offense of possession of a motor vehicle, defendants could have been given concurrent sentences, had they committed another felony while on pretrial release; however, under section 5 — 8—4(h), upon conviction for a second felony, a consecutive sentence became mandatory.

The State argues that defendants have waived their arguments regarding section 5 — 8—4(h) and their sentences by not raising them before the trial court. (People v. Kerker (1984), 121 Ill. App. 3d 1072, 460 N.E.2d 771.) It further argues that it is within the legislature’s province to define offenses and determine the penalties required to protect the interest of society (People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059), and that the legislature has wide discretion to prescribe penalties for defined offenses. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) A strong presumption of constitutional validity attaches to legislative enactments, and the party attacking a law has the burden of showing that it is unreasonable, clearly arbitrary and has no foundation in the legislature’s police power. (People v. Copeland (1980), 92 Ill. App. 3d 475, 415 N.E.2d 1173.) The test is whether a statute is reasonably designed to remedy the evils which the legislature has determined threaten the public health, safety and general welfare (Bradley, 79 Ill. 2d at 417), and, the State argues, section 5 — 8—4(h) is reasonably designed to remedy the threat posed by people who commit crimes while on bond. The State also notes that similar constitutional challenges have been rejected by Illinois courts: People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059; People v. Rodriguez (1985), 134 Ill. App. 3d 582, 480 N.E.2d 1147 (mandatory natural life sentencing provision of Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(c)); People v. Sims (1987), 166 Ill. App. 3d 289, 519 N.E.2d 921, cert. denied (1988), _U.S__, 102 L. Ed. 2d 92, 109 S. Ct. 118; People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136 (mandatory life imprisonment under habitual criminal statute, Ill. Rev. Stat. 1983, ch. 38, par. 33B — 1). Additionally, the State maintains, section 5 — 8—4(h) does not infringe upon judicial authority, because it allows the court broad discretion in determining the duration of each sentence, within permissible bounds.

With regard to defendants’ claim that their sentences violate the prohibition against ex post facto laws, the State asserts that section 5 — 8—4(h) did not increase the penalty imposed for an offense which occurred prior to the effective date of that statute; rather, it created an enhanced penalty for offenses occurring subsequent to the effective date. The section did not apply to defendants until they committed the burglary while on pretrial release for possession of a stolen motor vehicle. The burglary occurred after the effective date of the section, and thus there is no ex post facto problem.

We agree with the State that section 5 — 8—4(h) does not violate due process or the doctrine of separation of powers. Neither did it enhance the punishment of a crime committed prior to its enactment. Section 5 — 8—4(h) applied to defendants only after they committed the residential burglary, which was after the statute became effective. Thus, there can be no ex post facto issue in this case.

Defendants also contend that they should have been given the opportunity to choose whether to be sentenced under the sentencing scheme in effect when they committed the offense of possession of a stolen motor vehicle or that in effect when they were convicted for the burglary. Because they are complaining of their consecutive sentences, which were mandatory after they committed the burglary, and because they committed the burglary after section 5 — 8—4(h) was in effect, we can perceive of no reason why they should be given that choice.

Defendant Belton next argues that the State failed to prove that he was on pretrial release when he allegedly committed the burglary. The State responds that Belton did not object when the prosecutor argued that he committed the burglary while out on bond for possession of a stolen motor vehicle, and that the presentence investigation report indicates that the possession of a stolen motor vehicle charge was an open charge at the time of the burglary. It is clear from the record that Belton was on pretrial release at the time of the burglary. Defendants also assert that there was no presentence report at the time they were sentenced; however, the judge clearly stated for the record that he was “in receipt of a presentence investigation report[,] *** [c]opies of which were given both to counsel representing the defendants and the State.” The record fails to disclose any contradiction on anyone’s part of those remarks of the judge.

Defendants’ final argument is that the possession of a stolen motor vehicle statute (Ill. Rev. Stat. 1985, ch. 95½, par. 4— 103(a)) is unconstitutional, because the penalty for that offense is greater than that for theft of a motor vehicle (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(c)), of which it is a lesser included offense. (People v. Johnson (1978), 64 Ill. App. 3d 1018, 382 N.E.2d 85.) Our supreme court has recently rejected this argument in People v. Bryant (1989), 128 Ill. 2d 448. The court held that under the current statutory scheme, possession of a stolen motor vehicle is no longer to be considered a lesser offense of theft.

“The steady increase in the penalty provision for possession of a stolen motor vehicle is indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft.” (Bryant, 128 Ill. 2d at 448.)

The court then upheld section 4 — 103, stating:

“We believe that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4 — 103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4 — 103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” 128 Ill. 2d at 457-58.

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

Affirmed.

BILANDIC, P.J., and DiVITO, !, concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY SARGENT, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—2640

    Opinion filed June 20, 1989.

      Michael J. Pelletier and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Andrew LeFevour, Assistant State’s Attorneys, of counsel), for the People.

      This case was assigned to the second division on April 10, 1989.

   JUSTICE HARTMAN

delivered the opinion of the court:

After a jury trial, defendant was found guilty of armed robbery and sentenced to 22 years in custody of the Illinois Department of Corrections. Defendant appeals and raises as issues whether: (1) the circuit court erred in denying his request for a continuance of the trial; (2) certain remarks made by the prosecutor in closing argument denied him a fair trial; (3) he was entitled to a new sentencing hearing; and (4) his sentence should be modified.

On September 26, 1985, at about 3 a.m., Daisy Price and Ernest Walker were robbed by two men, one of whom carried a sawed-off shotgun. Defendant was subsequently arrested and charged with the armed robbery.

At trial the evidence revealed that Daisy Price and Ernest Walker left the New Ritz Hotel, located near Lake and Central in Chicago, between 2:15 and 3 a.m. on the morning of September 26, 1985. As they walked toward Walker’s car, they noticed three men sitting in a small brown four-door station wagon. Walker unlocked the passenger door for Price and, as she entered the vehicle, a man rushed around from in front of the car. One man, later identified as defendant, and a second man holding a shotgun, later alleged to be Ricky Westbrook, began pushing Walker. The man with the shotgun placed it against Walker’s head, walked him around the car, and made him lie on the ground. He searched Walker’s pockets, taking his wallet containing $9.

As Price sat in the car with the door still open, defendant grabbed her arm and demanded “Where is your purse?” When Price denied having a purse, which was actually located on the floor of the car, defendant leaned inside the vehicle to look for himself. The armed offender then entered the car from the driver’s side and pointed the shotgun in Price’s face. Defendant eventually found the purse, which contained an ID, checkbook, and $300 in cash, tucked the purse under his arm, and said, “All ladies wear chains.” He was unable to pull off the chain Price wore around her neck, however, but did take her watch; he then demanded her ring. Defendant could not remove the ring from Price’s finger and threatened to cut it off with his knife. Defendant subsequently shouted “I’ve got the purse,” the other man responded “Let’s go” and they ran off, dropping the shotgun in the parking lot. Walker chased after the two men, but they escaped from him by jumping a fence. Price immediately flagged down a passing police car, driven by Officer Joseph Eichinger, to report the robbery.

Price recalled that during the entire incident, she saw defendant’s face clearly. The car’s interior dome light was on, and the location was illuminated by streetlights. She also described being “eyeball to eyeball” with defendant during the robbery. Walker claimed he caught a quick glimpse of defendant at the outset of the encounter.

Larry Daniels was the third man sitting in the car noticed earlier by Price and Walker. He testified that in the early hours of September 26, 1985, he was driving to a relative’s house in his brown Hornet station wagon when he saw defendant and Ricky Westbrook on the street. The two men flagged down Daniels and asked for a ride to Lake and Central. He initially refused, but later agreed when offered $5.

Daniels dropped off his family and proceeded to the requested intersection. Westbrook, and then defendant, told Daniels they were planning to rob somebody. Daniels drove to the New Ritz Hotel and pulled into the parking lot. They saw a lady and man walking to their car; Westbrook and defendant got out of Daniels’ car and ran towards them. Although he was supposed to wait for the two men, Daniels became scared, not wanting to be involved. He drove off, but his car stalled on Central directly in front of the hotel. As Daniels restarted his vehicle, police sergeant Bill Sheldon, on routine patrol, drove up and asked if there was a problem. After a brief conversation, Daniels drove away down Central; 30 seconds to 1 minute later, the sergeant received a radio call informing him of the recent robbery.

Meanwhile, as Price reported the robbery and described the car she saw earlier to Eichinger, she looked down the street and noticed Daniels’ vehicle, which was slowly proceeding down Central. Eichinger pursued the vehicle, curbed it less than two blocks away, and arrested Daniels.

Daniels immediately agreed to cooperate with police. He showed them an apartment building on the 4300 block of West Van Burén, where he thought the offenders might be staying, and later named Westbrook and defendant as the perpetrators. In cross-examination, however, Daniels admitted that he initially did not name defendant and told police a conflicting version of the robbery. At approximately 5:15 that same morning, he took two officers and two detectives back to the building on Van Burén. Daniels knocked on the door of the basement apartment and identified himself; defendant answered and opened the door asking “Where the fuck you been? You booked on us.” The police entered the apartment and saw defendant and four other men inside, standing around a bar, attempting to stuff money into their pockets. Daniels then told police which men were Westbrook and defendant.

The five men eventually were taken to a police station, and around 7:15 a.m. that same morning, put into a lineup. Price, upon viewing that lineup, immediately identified defendant, saying she was “absolutely positive” he was the man who robbed her. She did not identify Westbrook, however, who also was placed in the same lineup. Walker also identified defendant, but was tentative; he stated that he was not positive, but was “reasonably sure” or “almost sure” of his identification of defendant. Walker also did not recognize Westbrook in the lineup at the station. Both Walker and Price identified defendant in court.

Defendant’s testimony differed from that of the foregoing State’s witnesses in several details. He claimed that he met his girlfriend, Verdel Evans, at 4:30 p.m. the previous day, and they went to drink and gamble in the apartment at 4340 W. Van Burén. He stayed in that apartment from 5 to about 12:30 a.m. the following morning, when he left with Evans to purchase alcohol from a nearby store. He immediately returned to the apartment and continued to drink and gamble. He never left the apartment, never went anywhere with Westbrook, and never entered a car driven by Daniels. A man named Willie Stiffend answered the apartment door when Daniels knocked. The money confiscated from him by police was his, which he was using for gambling purposes. According to defendant, Verdel Evans left the apartment alone between 4 and 4:30 that morning, shortly before police arrived.

The jury found defendant guilty of two counts of armed robbery, judgment was entered on the verdict, and defendant was subsequently sentenced as previously noted, and fined $20 under the Violent Crime Victims Assistance Act (Ill. Rev. Stat., 1984 Supp., ch. 70, par. 510(b)). Defendant appeals, and asks this court to reverse his conviction, and alternatively requests that if the conviction is affirmed, the cause be remanded for a new sentencing hearing.

I

Defendant first contends that the circuit court erred in denying his request for a continuance in order to secure the presence of an alibi witness. Following defendant’s trial testimony, defense counsel intended to call Verdel Evans to corroborate the alibi; since she was not present in the court at that point in the trial, counsel asked for a continuance. As of 2:30 that afternoon, when the defense desired to call her as a witness, Evans had not yet appeared. Defense counsel stated that: Evans had been in court the two previous days, but had a traffic matter to resolve in the Maywood court earlier that morning; defendant’s uncle could not locate Evans; and Evans hadn’t contacted him since the previous day. The court responded: “Well, not knowing why she isn’t here, the motion is denied.” Counsel then replied, “At this point the defense would rest.” Defendant submits this ruling denied him a fair trial.

In order to preserve an alleged error for review, both a trial objection and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988),_U.S.__, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Neal (1985), 111 Ill. 2d 180, 196, 489 N.E.2d 845; People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223.) Defendant has waived this issue. His post-trial motion asserts 13 potential grounds for a new trial, but does not specify the court’s denial of the continuance as one of them. The only grounds asserted that are possibly related to the alleged error are contained in number 3, “The defendant was denied due process of law,” and number 7, “The defendant did not receive a fair and impartial trial.” Without more specificity, these allegations are too general to have alerted the circuit court to any proposed error in its ruling regarding the continuance and “stand in sharp contrast to the particularized nature” of other grounds subsequently set forth in the written motion. (People v. Nunez (1974), 24 Ill. App. 3d 163, 169-70, 320 N.E.2d 462; see also People v. Witherspoon (1975), 33 Ill. App. 3d 12, 21, 337 N.E.2d 454.) Defendant’s failure to specify this issue in his written motion for a new trial resulted in waiver.

Assuming arguendo that defendant had properly preserved the issue, there was no error. The grant or denial of a continuance rests within the sound discretion of the circuit court, and its ruling will not be disturbed on review absent a clear abuse of.that discretion. (People v. Collins (1985), 106 Ill. 2d 237, 281, 478 N.E.2d 267.) In reviewing the exercise of the court’s discretion when a continuance is sought to secure the presence of a witness, this court must consider whether: (1) defendant has demonstrated a diligent effort to have the witness present; (2) the witness’ testimony is material and might affect the outcome of the case; and (3) defendant has been prejudiced in his right to a fair trial. (People v. Timms (1978), 59 Ill. App. 3d 129, 135, 375 N.E.2d 1321.) In this case, it cannot be determined that the circuit court abused its discretion in denying defendant’s request for a continuance; there is nothing in the record to establish what Verdel Evans’ testimony would have been.

A defendant seeking a continuance to secure the presence of a witness must make an offer of proof of that witness’ proposed testimony. (People v. Boyce (1977), 51 Ill. App. 3d 549, 559, 366 N.E.2d 914, citing People v. Blackman (1966), 76 Ill. App. 2d 401, 222 N.E.2d 262 (abstract of opinion).) The purpose of such an offer is to inform the trial court, opposing counsel, and the reviewing court of the nature and substance of the testimony defendant would have introduced. (People v. Martin (1981), 101 Ill. App. 3d 480, 485, 428 N.E.2d 591.) Defendant correctly points out that an offer of proof is not necessary where there is a satisfactory indication to the court of the substance of the proposed testimony (People v. Moore (1975), 27 Ill. App. 3d 337, 344, 326 N.E.2d 420); however, the circuit court’s general awareness that Evans would be offering alibi evidence is insufficient to eliminate the need for an offer of proof. As stated in People v. Brown (1982), 104 Ill. App. 3d 1110, 1119, 433 N.E.2d 1081: “In making an offer of proof, counsel must explicitly state what excluded testimony would reveal and not merely allude as to what might be divulged by such testimony.” In the case at bar, defense counsel simply indicated that Evans was an alibi witness, and never explicitly informed the court what her testimony would reveal. Instead, he rested his case when his motion for a continuance was denied. Under the circumstances, an offer of proof was necessary, and we therefore cannot consider this issue on review. People v. Martin, 101 Ill. App. 3d at 485.

Considering the first factor outlined in Timms, defendant’s failure to explain adequately Evans’ whereabouts that afternoon defeats any claim of diligence. As to the second and third factors, this court cannot determine whether the proposed testimony was material and would have affected the outcome of the case, or whether defendant was prejudiced in his right to a fair trial. The court has no way of knowing the materiality of testimony sought to be introduced without an offer of proof, even if it is told by counsel that the proposed evidence is in the nature of corroboration of an alibi. (See People v. Veal (1978), 58 Ill. App. 3d 938, 978, 374 N.E.2d 963.) Certainly, testimony corroborating defendant’s alibi would be material; whether it would have affected the outcome under the facts of this case is dubious. If Evans’ testimony only would have corroborated collateral aspects of defendant’s testimony, a continuance would have been improper. (People v. Bryant (1983), 115 Ill. App. 3d 215, 221, 450 N.E.2d 744.) As noted in People v. Street (1971), 133 Ill. App. 2d 536, 541, 273 N.E.2d 172: “[I]t is fruitless in the absence of the offer of proof to speculate upon the probable testimony of witnesses which the defense sought to place before the court ***.” Defendant’s suggestion that “logic dictates” Evans’ testimony would corroborate defendant’s alibi asks this court to engage in improper speculation. Finally, because we cannot speculate as to the nature and substance of Evans’ testimony, defendant has failed to demonstrate any prejudice resulted as a result of the court’s ruling. The circuit court did not abuse its discretion in denying defendant a continuance.

Defendant also argues that the prejudice to defendant from this ruling was exacerbated when the prosecutor alluded to Evans’ absence in cross-examination of defendant and again in closing argument. This contention is without merit. The cross-examination of defendant occurred before it was known that Evans was absent. The prosecutor did not refer to Evans’ absence; rather, he methodically reviewed defendant’s testimony, which included inquiry into his alibi involving Evans, not mentioning her absence. This was proper cross-examination. People v. Winston (1982), 106 Ill. App. 3d 673, 686-87, 435 N.E.2d 1327.

Later, in closing argument the prosecutor commented: “Now, what corroboration of the defendant’s story have we heard?” Defendant concedes that the comment was proper, but insists he was prejudiced in that it could not have been made if the court granted the continuance to allow Evans to testify. Again, since we do not know what Evans would have said in her testimony, we cannot determine whether she would have corroborated defendant’s alibi. Further, the remarks cannot be construed to be a comment on defendant’s failure to call Evans; the record reveals that four additional persons were mentioned by defendant who might have supported his testimony, but they were not called. The comment thus would have been proper even if Evans testified. Defendant was not prejudiced improperly by the prosecutor’s reference to lack of corroboration, therefore.

II

Defendant next claims that certain remarks by the prosecutor in closing argument improperly denied him a fair trial. Specifically, he maintains that the prosecutor: (1) improperly placed the weight of the State’s Attorney’s office behind the credibility of its witnesses; (2) improperly interjected his own personal opinion into the argument; (3) impermissibly enhanced the credibility of the police officers’ testimony; and (4) incorrectly referred to evidence which had been excluded. Defendant concludes that even if each error alone does not warrant reversal, the cumulative impact of the statements materially prejudiced the jury.

A review of the record in this case discloses that defendant has waived review of the prosecutor’s comments in closing argument for two reasons: First, he failed to object to any of these remarks at trial. (People v. Neal, 111 Ill. 2d 180, 196; People v. Gacy (1984), 103 Ill. 2d 1, 88-89, 468 N.E.2d 1171.) Second, he failed to raise this issue in his written motion for a new trial. (People v. Enoch, 122 Ill. 2d 176, 186.) In his written motion, defendant asserts the following:

“9. The assistant state’s attorney made prejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury thereby prejudicing the defendant’s right to a fair trial.”

This allegation is too general to have alerted the court to any proposed error; failure to specify the alleged errors in a written motion for a new trial constitutes waiver of these issues. People v. Witherspoon, 33 Ill. App. 3d 12, 21.

Even if the post-trial motion was sufficient, however, the failure to make timely objections at trial resulted in waiver, since both are necessary to preserve an issue for review. (People v. Enoch, 122 Ill. 2d at 186.) One of the purposes behind the waiver rule is directly implicated here. Appellate counsel obviously has diligently “comb[ed] the record for every semblance of error,” and has raised them without regard for whether trial counsel considered them important or not. See People v. Caballero, 102 Ill. 2d at 32.

Nor can this court consider the issue under the plain error doctrine as defendant urges (107 Ill. 2d R 615(a)), where, as here, the evidence is neither closely balanced nor of such gravity that defendant was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 250-51, 430 N.E.2d 1091; People v. Hudson (1985), 137 Ill. App. 3d 606, 610, 484 N.E.2d 1246; see also People v. Yates (1983), 98 Ill. 2d 502, 533, 456 N.E.2d 1369.) Price positively identified defendant in the lineup and in court as one of the offenders; Walker tentatively identified defendant in the lineup, and positively in court; Daniels, one of the men involved in the armed robbery, recounted the entire incident, identified defendant to police, and testified as to defendant’s substantial role in the crime. These identifications of defendant were independent of each other. It cannot be said, therefore, that the jury’s verdict resulted from the allegedly improper remarks. Even if improper, the comments do not constitute plain error.

Assuming arguendo that defendant properly preserved the issue, each comment has been examined. Defendant’s first argument is that the prosecutor improperly placed the weight of his office behind the credibility of the State’s witnesses by stating he was putting his law license on the line. In defendant’s closing argument, counsel urged that certain testimony given by State’s witnesses did not “come from the head, it comes from rehearsal. Each one of the witnesses was rehearsed ***.” In rebuttal, the prosecutor responded that he and his colleague “wouldn’t put our law licenses on the line one day to rehearse anybody.” Defendant contends this last comment was improper. The State’s comment in rebuttal constituted a denial that the prosecutors would be parties to such improper conduct, a response clearly invited by the arguments of counsel and was not improper. People v. Griggs (1977), 51 Ill. App. 3d 224, 226, 366 N.E.2d 581. See also People v. Mays (1979), 74 Ill. App. 3d 145,156-57, 392 N.E.2d 106.

The cases relied on by defendant are inapposite. In People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256, People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217, and People v. Calderon (1980), 85 Ill. App. 3d 1030, 407 N.E.2d 840, the prosecution made similar comments, but the court found they were not invited by defendant’s argument and therefore were prejudicial.

The second comment complained of, made by the prosecutor, referred to the lineup viewed by the witness Price. According to defendant, the prosecutor improperly interjected his personal opinion into the argument when he stated that the lineup was “extremely good,” claimed to have been an expression of the prosecutor’s personal belief in the veracity of Price’s lineup identification. It is reversible error for a prosecutor to offer his professional opinion or belief regarding the credibility of a witness. (People v. Calderon, 85 Ill. App. 3d at 1039.) In its context, however, the prosecutor’s comment only referred to the nonsuggestiveness of the lineup, rather than Price’s credibility, and did not constitute improper argument. See People v. Williams (1985), 137 Ill. App. 3d 736, 745, 484 N.E.2d 1191.

The third protested remark occurred when the prosecutor allegedly enhanced the credibility of the police officers’ testimony. In argument addressed to the credibility of the various State witnesses, the prosecutor commented concerning the detectives having had 20 years’ experience, who would not put their long careers on the line over defendant, which defendant concludes was improper. A police officer’s testimony is to be evaluated in the same manner as that of any other witness; there is no presumption that a police officer is more credible than any other witness. (People v. Rogers (1988), 172 Ill. App. 3d 471, 476, 526 N.E.2d 655; People v. Ford (1983), 113 Ill. App. 3d 659, 662, 447 N.E.2d 564.) The cases are in conflict, however, whether it is proper argument to comment that police officers would not jeopardize their careers by testifying falsely against a defendant. (People v. Hunter (1984), 124 Ill. App. 3d 516, 548, 464 N.E.2d 659, comparing People v. Parker (1979), 72 Ill. App. 3d 679, 391 N.E.2d 89 (improper), with People v. Mayfield (1979), 72 Ill. App. 3d 669, 390 N.E.2d 1315 (proper).) Even if the comment was improper, any error was harmless, since, as noted above, the evidence of defendant’s guilt was overwhelming and the complained-of remark could not have been a material factor in his conviction. (People v. Faysom (1985), 131 Ill. App. 3d 517, 525, 475 N.E.2d 945.) We note that the prosecutor made only one such comment and did not engage in repeated improper argument in this area. (See, e.g., People v. Rogers, 172 Ill. App. 3d at 476-77.) Additionally, the important testimony of the police officers was corroborated by other witnesses.

The fourth alleged improper comment is identified by defendant as a reference to evidence that was excluded by the court. Defendant argues that the prosecutor improperly commented on why Ricky Westbrook, purportedly the man wielding the shotgun during the robbery, was not prosecuted. During the cross-examination of Officer Eichinger, defense counsel attempted to ask what happened to West-brook after he was arrested. The State objected, and a sidebar was held. The court eventually ruled that such inquiry by defense counsel was irrelevant to defendant’s participation in the robbery. Later, in rebuttal argument, the prosecutor responded to what he considered unwarranted speculation by defense counsel that the lineup at police headquarters was suggestive. Our examination of the record reveals that defendant appears to have misinterpreted the State’s mention of Westbrook. The comment was made in response to defense counsel’s argument that the lineup was suggestive; indeed, defendant’s brief admits that his counsel mentioned Westbrook with reference to the credibility of the witnesses’ lineup identifications. In rebuttal, the prosecutor attempted to counter any inference that the police “framed” defendant. The fact that Westbrook was in the lineup, but not identified, only remotely relates to why he was not prosecuted in this case. Viewed in its entire context, the reference to Westbrook was not a comment upon evidence which had been excluded, but was a response to the inference that the police were setting up defendant through the use of a suggestive lineup.

In sum, pretermitting waiver, even if improper, the remarks could not have been a material factor in defendant’s conviction given the compelling evidence of guilt, and the verdict would not have been different absent those comments. See People v. Faysom, 131 Ill. App. 3d at 525.

Ill

Defendant next contends he is entitled to a new sentencing hearing because the circuit court did not consider a current presentence investigative report. He claims that because the court considered a report that was eight months old, the presentence investigation failed to reflect significant information (such as whether he sought rehabilitation or treatment for his drug problem); he concludes, therefore, that the report failed to meet the statutory standards. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 3—2.

In sentencing defendant on September 11, 1986, the court relied on a presentence report filed approximately seven months earlier, on February 10, 1986. At the sentencing hearing defense counsel advised the court that he reviewed the presentence investigation, waived the three-day period, and suggested that one entry was inaccurate, an indication that defendant was convicted of the possession charge, which he believed was “nolled” at trial. After the possession charge was corrected, the following colloquy took place:

“THE COURT: All right. No changes, no corrections?
MR. BRENNOCK (Defense counsel): No.
MR. MORASK (Prosecutor): No, your Honor.
THE COURT: Any testimony, the pre-sentence investigation will be made part of the record unless there is any objection.
MR. BRENNOCK: No objection.
MR. MORASK: We have no objection, Judge.” (Emphasis added).

The hearing then proceeded, and defendant was subsequently sentenced.

It is the duty of the parties to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in a presentence investigative report. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9. See also People v. Laramore (1987), 163 Ill. App. 3d 783, 793, 516 N.E.2d 401; People v. Gornick (1982), 107 Ill. App. 3d 505, 515, 437 N.E.2d 892.) Here, as in Gornick, “[a]ny purported deficiency in the presentence report with respect to its lack of current information was waived by defendant’s failure to object.” (107 Ill. App. 3d at 515; see also People v. Moore (1983), 115 Ill. App. 3d 266, 271, 450 N.E.2d 855.) Additionally, presentence reports prepared 10 months (People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892) and 14 months (People v. Stahlman (1982), 103 Ill. App. 3d 402, 431 N.E.2d 694) prior to sentencing were found acceptable, and any errors were waived by each defendant’s failure to object to their alleged deficiencies.

Defendant nevertheless argues that the statutory requirements for presentence reports are legislative, and not a personal right of defendant, and thus could not be waived. Defendant’s reliance on People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416, and People v. Lynch (1984), 122 Ill. App. 3d 121, 460 N.E.2d 817, in support of his argument, is misplaced. In Youngbey and Lynch, no report was filed; in Harris, no original presentence report was filed, and an “updated” report, prepared for a sentencing hearing after revocation of probation, “fell so far short of satisfying the statutory requirements as to render it totally inadequate.” (Harris, 105 Ill. 2d at 301.) Here, unlike these cases, a full report was submitted and considered by the court.

Defendant confuses a waiver of the preparation of a presentence report, which will not be permitted, with a waiver of any objections to deficiencies in a report based on its staleness. In the case before us, defense counsel made one correction, then explicitly approved of the presentence report; defendant cannot maintain on appeal that use of the report was error. People v. Moore, 115 Ill. App. 3d at 271.

IV

Defendant lastly contends, and the State concedes, that his sentence must be modified to reflect full credit against the $20 fine imposed under the Violent Crime Victims Assistance Act. (Ill. Rev. Stat., 1984 Supp., ch. 70, par. 510(b).) Section 110 — 14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1985, ch. 38, par. 110 — 14) provides for a credit of $5 for each day of incarceration against any fine levied on conviction upon application of the defendant. Recently, the Illinois Supreme Court concluded that this monetary credit is available to defendants fined pursuant to the Violent Crimes Assistance Act who were convicted prior to the effective date of the amendment denying the credit. (People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.) Defendant, incarcerated almost one year between the day of his arrest and the date he was sentenced, is entitled to have his sentence modified to reflect a full credit against the $20 fine.

From the foregoing analysis we are compelled to affirm defendant’s conviction. His sentence will be modified to reflect full credit against the $20 fine imposed.

Judgment affirmed.

BILANDIC, P.J., and DiVITO, J., concur.

      Defendant’s reliance on People v. Timms (59 Ill. App. 3d 129) is misplaced. In Timms, unlike the case at bar, defense counsel knew of the unexpected last-minute events which prevented an alibi witness from appearing; his car had broken down on the way to court. Here, defense counsel had no idea where Evans was, or if in fact she was delayed by last-minute events. More importantly, in Timms, the defendant submitted affidavits in his motion for a new trial establishing what the prospective alibi testimony would be; here, on the other hand, this court has no way to determine what Evans’ testimony would have been. Defendant here filed no affidavits nor made an offer of proof establishing Evans’ proposed alibi testimony.

      The Act was subsequently amended, so that effective January 1, 1986, fines imposed under this section were explicitly exempt from the operation of the $5-per-day credit provision of the Code of Criminal Procedure. Ill. Rev. Stat. 1985, ch. 70, par. 510(b).


author: PRESIDING JUSTICE BILANDIC

text:
    WILLIAM BENNETT, Plaintiff-Appellant, v. EVANSTON HOSPITAL et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—2245
    Opinion filed June 20, 1989.
    Armand L. Andry, of Oak Park, for appellant.
    Joan E. Gale and Sarah E. Hall, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellees.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

This action was brought to recover damages allegedly incurred in connection with a claim of breach of an alleged employment contract between plaintiff and defendants. The trial court dismissed plaintiff’s entire second amended complaint with prejudice under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 100, par. 2— 615). Plaintiff conceded the dismissal of count I. This appeal raises the issue of whether count II states a claim for breach of an employment contract.

Plaintiff alleged in his second amended complaint that he was formerly employed by defendant hospital as a mental health specialist. The individual defendants were not named or identified. Plaintiff further alleged that he was suspended and later terminated from his employment with defendant hospital in July 1984; that in force and effeet at the time of his termination was an employee handbook; that he was told he was terminated for violating the regulations on confidentiality contained in the handbook; that he did not violate these regulations; that the handbook constituted a contract between plaintiff and defendants; and that defendants breached the alleged contract by terminating him. The handbook was attached as an exhibit and incorporated into the second amended complaint.

An introduction from the hospital’s president on the first page of the handbook states:

“This is your copy of the Hospital’s Employee Handbook. It is not intended to create a contract of employment. Rather, it is simply intended to generally describe the Hospital and its present benefits, policies, and procedures.” (Emphasis added.)

The handbook does not contain any provision which requires just cause as a basis for dismissal. Plaintiff merely pleads the existence of a contract as a legal conclusion without alleging any ultimate facts to support that conclusion. Plaintiff relies on the handbook to provide those facts notwithstanding the express provision disclaiming a contract.

Under Illinois law, an employee hired for an indefinite period of time is terminable at will, for any reason or no reason, absent a violation of clearly mandated public policy. Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

In Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, our supreme court recently held:

“An employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” 115 Ill. 2d at 490.

Defendants assert that the second amended complaint fails to allege the existence of an employment contract because: (1) the handbook contains no “promise clear enough that any employee would reasonably believe that an offer had been made”; and (2) the handbook contains a disclaimer which negates any possible promissory intent under Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, appeal denied (1987), 116 Ill. 2d 562.

In Moore, plaintiff alleged breach of an employment contract with a written incentive plan as the basis. The appellate court reversed a judgment for the plaintiff finding that the incentive plan did not create any enforceable contractual rights because the first requirement for contract formation was not present; that is, the incentive plan did not contain a promise clear enough that an employee would reasonably believe that an offer had been made. (155 Ill. App. 3d at 784.) The incentive plan in Moore provided:

“AT&T reserves the right to amend, change, or cancel the Incentive Plan at its discretion. It also reserves the right to reduce, modify, or withhold awards based on individual performance or management modification. The Plan is a statement of management’s intent and is not a contract or assurance of compensation.” (155 Ill. App. 3d at 783.)

Commenting on this provision, the court held:

“Those three sentences, especially the last one stating ‘[t]he Plan is a statement of management’s intent and is not a contract or assurance of compensation,’ make it clear that defendant in the incentive plan was promising nothing. Therefore, it would not be reasonable for an employee to believe that defendant had made an offer in the incentive plan, and so no enforceable contractual rights were created by that plan.” 155 Ill. App. 3d at 784-85.

Plaintiff seeks to avoid the effect of Moore by arguing that Duldulao did not discuss the effect of a disclaimer. We are not persuaded, because in Duldulao there was no disclaimer to discuss. Nevertheless, the court did mention that its determination of the existence of the elements of a contract in the handbook was due, in some part, to the fact that there were no disclaimers to negate the promises.

Plaintiff also refers to Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622, the case upon which the Duldulao court relied. According to plaintiff, the handbook in Pine River contained a disclaimer and yet the court found a contract to exist. However, what plaintiff fails to mention is that there was no written disclaimer contained in that employee handbook. There was only testimony to the effect that the drafters of the handbook did not intend to create a contract or extend an offer.

The question of the existence of a contract is a matter of law for determination by the court. (Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 454 N.E.2d 1120.) In light of the foregoing, the court correctly found no contract could exist and properly dismissed the cause of action.

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

Affirmed.

SCARIANO and DiVITO, JJ., concur.