author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH SAUCIER, Defendant-Appellant.
    Second District
    No. 2 — 89—1112
    Opinion filed November 6, 1991.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Joseph Saucier, appeals from the revocation of his order of probation and the court’s order of October 24, 1989, sentencing him to five years’ imprisonment. We reverse the judgment revoking defendant’s probation, we remand the cause, and we vacate the sentence imposed in the order of October 24, 1989.

On June 14, 1989, defendant pleaded guilty to one count of aggravated criminal sexual abuse, a Class 2 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(e)). The factual basis of the plea was that, on or about April 11, 1987, defendant, who was born April 13, 1926, placed his finger inside the vagina of his 10-year-old stepdaughter, K.E, and fondled her breasts. After admonishing defendant of his rights, the trial court accepted the plea. The original sentencing order provided that defendant be placed on probation for a period of 36 months. Among other things, as a condition of probation, defendant was to serve 12 months’ periodic imprisonment and was to be confined for 24 hours each day except that he was to be “released for any purpose of counselling or transfer to work release.” Another condition was that defendant have “[n]o unsupervised contact with any minors whatsoever.”

On September 20, 1989, the State filed a (second) petition for revocation of defendant’s probation in which it alleged that he had willfully violated the terms of his probation by having unsupervised contact with the victim on September 3, 1989, and by violating the “Lake County Work Release Rules and Regulations” on September 3, 1989, when he went to an area not authorized by the work release facility.

On September 20, 1989, after a hearing, the trial court found that defendant had violated the conditions of his probation which had been imposed on August 15, 1989. At the hearing, Vanessa Norsworthy testified for the State. Norsworthy worked for the Lake County sheriff’s office in the work release program where she supervised and maintained security in the building and residence. On September 3, 1989, defendant was a resident at the work release facility. At 7:23 p.m. on that date, Norsworthy was at 2160 Hebron Street in Zion, Illinois, where she was picking up her daughter at her girlfriend’s home. Her girlfriend is Annette Cecil, the sister of Diane Saucier. Diane is defendant’s former wife and the mother of the victim. Norsworthy, Cecil, and Diane Saucier were outside talking; they were on the street near the car. Norsworthy could not recall if K.E. was present.

Norsworthy noticed defendant drive down Hebron Street. She called his name; he looked at her but kept driving by. He twice turned around and drove by. He was driving slowly. The next morning, Norsworthy pulled defendant’s file at the work release facility to examine defendant’s leave agreement. She identified the agreement as the State’s exhibit, and it was admitted into evidence. Defendant had filled out a leave agreement for a 12-hour pass in which he listed the locations of his planned activities on September 3: “Go to church & spend the rest of the time at home,” and “Church. Evanston. Home N. Chicago.” In response to the item stating with whom he would be, he wrote in “Family.” At the top of the form, the address and telephone number of his brother was listed under the rubric “APPROVED LEAVE SITE.” Regarding transportation, defendant wrote in: “Driving myself.”

Norsworthy said that a leave agreement is used so that the staff will know where an inmate resident is supposed to be at all times. Defendant never said he was going to Zion, nor did he call to say that he was changing his leave site. According to Norsworthy, defendant’s presence in Zion was considered a violation of his periodic imprisonment/work release agreement. She stated that a handbook of rules and regulations is given to the residents. Norsworthy said a resident must notify the center immediately if there is a change of leave site.

Diane Saucier, the victim’s mother, testified that she was standing outside her sister’s house at 2160 Hebron Street at 7:23 p.m. on September 3. She was talking with Annette Cecil and Vanessa Norsworthy. K.F. was at a playground on the opposite side of the street, about 10 or 15 feet away from the road. Diane saw defendant drive by slowly; he honked and waved. He drove by three times.

Diane decided to get her children, Aaron and K.F., and go home, about three blocks away at 2413 Joppa Street. She parked in the driveway. As they were getting out of the car, defendant drove slowly through the alley by the house; he waved and smiled. He drove by a second time smiling. Diane reported the incident to the periodic imprisonment/work release facility.

K.F. testified that she also saw defendant drive by twice while she was in the park. He blew the horn, smiled, and waved. Defendant’s conduct was repeated twice as she arrived home with her mother.

Annette Cecil also testified that defendant drove by slowly; he waved and blew his horn.

Defendant’s girlfriend, Dorothy Rogers, testified that defendant visited her at about 7 p.m. at her home at 1915 Hebron Street. He left at 9:35 p.m. because he had to go back to the periodic imprisonment/work release facility by 10 p.m. Her home was 21k blocks from 2160 Hebron Street.

Defendant testified, acknowledging that he filled out the leave agreement; he had planned to go to his church in Evanston and to his home in North Chicago. On his way back from those places, he went to Hebron Street to see a former employer named Underwood about a windshield for his nephew. He passed Underwood’s house but did not see his car. He came back around Hebron and went to Dorothy’s house. As he drove by, he recognized his ex-wife’s sister, but not Vanessa Norsworthy. He did not honk, but he may have waved. He said he did not see K.F. and Diane. He denied knowing where Diane Saucier lived or that he drove by her house. On cross-examination, defendant stated that he never went to Joppa Street because he was warned by the judge never to go where Diane lived.

The trial court found that defendant went to an area that was not authorized by his pass; that he went out of his way to harass and annoy his ex-wife; and that he saw her and her daughter and passed by them again. The court concluded: “I think Joe is just playing games with them, with Work Release program, and with my order. So, I will find him in violation.”

Defendant’s motion to reconsider was denied, and he was sentenced to a five-year term of imprisonment.

On appeal, defendant argues that (1) where the probation order did not specify that he not violate any periodic imprisonment/work release rule or regulation, there could be no violation of the probation order on that basis; and (2) the State failed to prove by a preponderance of the evidence that defendant had “unsupervised contact with a minor” as specified in the order when he drove by the mother and her daughter. We agree in part.

A probationer whose probation the State seeks to revoke must be accorded substantial justice. (People v. White (1975), 33 Ill. App. 3d 523, 528.) While the defendant at a probation revocation proceeding is not entitled to the same protections afforded a defendant initially standing trial for the substantive criminal offense (People v. Cox (1990), 197 Ill. App. 3d 239, 243-44), he is nevertheless entitled to “minimal due process.” (People v. Hill (1991), 208 Ill. App. 3d 887, 891.) Due process requires a fair determination that the acts which formed the basis for the revocation did occur and that fairness be accorded a defendant during the proceedings. (See People v. Allegri (1984), 127 Ill. App. 3d 1041, 1046 (discussing minimal due process requirements), aff’d (1985), 109 Ill. 2d 309.) A sentence of probation constitutes a form of agreement between the offender and the criminal justice system, and, because of the severity of the consequences if the agreement is broken, it is important that there be a definite, memorialized understanding of what is required of defendant. People v. Brown (1985), 137 Ill. App. 3d 453, 455.

Section 5 — 6—3(a) of the Unified Code of Corrections enumerates five specific conditions which attach to all sentences of probation and conditional discharge. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6— 3(a).) For example, the accused may not violate any criminal statute of any jurisdiction. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(a)(1); see also People v. Newton (1974), 18 Ill. App. 3d 180, 183.) However, where the court fashions its own discretionary conditions which are not enumerated in section 5 — 6—3(a), the probation order or certificate must reasonably specify in writing what conduct is expected of the accused. See Brown, 137 Ill. App. 3d at 455.

We recognize that, in some situations, it may be desirable or even necessary to express a condition in rather general terms; such a condition may still operate to prohibit specific conduct with which a defendant is charged if that conduct is clearly and fairly within the terms of the condition. (See People v. Bruce (1980), 102 Mich. App. 573, 579, 302 N.W.2d 238, 241; 3 W. LaFave & J. Israel, Criminal Procedure §25.3(c) (1984).) However, a probation requirement may be so ambiguous that it is not reasonable to say that the defendant’s action was regulated by the standard of conduct imposed by the trial court, thereby rendering a penalty inherently incapable of enforcement. (Hudgins v. State (1982), 292 Md. 342, 348, 438 A.2d 928, 931.) Thus, for example, in Morgan v. Foster (1952), 208 Ga. 630, 632, 68 S.E.2d 583, 584, a condition that the probationer “maintain a correct life” was determined to be too vague and uncertain to be given any construction or application.

Due process requires that a person know in advance what behavior is expected or prohibited. Thus, it has been held that a condition of probation affords fair notice of what conduct is prohibited where the average person would understand the meaning of the condition. See 3 W. LaFave & J. Israel, Criminal Procedure §25.3(c), at 145 (1984); Brown v. State (Fla. App. 1981), 406 So. 2d 1262, 1263 (average person would understand the meaning of admonition to “Stay away from bars”).

Notwithstanding the two allegations which the State maintains were violations of defendant’s probation, the probation order itself did not sufficiently advise the defendant that he would be violating the order when he deviated from the rules of the periodic imprisonment/ work release program, or when he drove by his ex-wife and her minor daughter on a public street in the presence of two other adults, or even when he drove by the ex-wife and her daughter as they returned to their home. It is not sufficient to complain that defendant did not comply with the “spirit” of the order. See People v. Prusak (1990), 200 Ill. App. 3d 146, 149.

The order required that defendant have no unsupervised contact with any minors whatsoever. While it is arguable that defendant had at least visual contact from a distance, and while we sympathize with the victim in her extreme discomfort in seeing defendant, unfortunately, the term “unsupervised” is not defined in any way. The word has been defined to mean: “not under constant observation.” (Webster’s Third New International Dictionary 2512 (1986).) It is undisputed there was at least one adult present at all times who observed the drive-by incident. Regarding his harassment of the victim, defendant’s conduct may have been less than honorable. However, it was not a violation of the probation order.

The court’s determination as to a violation of probation based upon violations of periodic imprisonment/work release regulations is procedurally defective. However, the State has presented evidence upon which the trial court could have determined a violation of the conditions of probation by a preponderance of the evidence. (People v. Prusak, 200 Ill. App. 3d at 149.) Under the circumstances of this case, any sanction against defendant for violating the internal rules of the periodic imprisonment/work release program would have to come from a source other than the probation order itself. Those sanctions are set forth in section 5 — 7—2 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-7-2).

The defendant is imputed to have knowledge of criminal penal statutes. Section 5 — 7—2 of the Code sets forth conditions which may result in modification or revocation of periodic imprisonment. The court may revoke the periodic imprisonment if:

“(1) the offender commits another offense; or
(2) the offender violates any of the conditions of the sentence; or
(3) the offender violates any rule or regulation of the institution, agency or Department to which he has been committed.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—2.)

The record contains sufficient evidence to support a finding as to conditions 2 and/or 3 above.

These violations could, if deemed sufficiently serious, support a revocation of defendant’s periodic imprisonment. If the court were to revoke defendant’s periodic imprisonment, then defendant would have failed to serve his sentence of periodic imprisonment and he would have violated his particular terms of probation. Furthermore, if the court had revoked defendant’s periodic imprisonment, the court could have sentenced the defendant pursuant to subsection (c) of section 5 — 7—2, the same as he could have been sentenced for a violation of probation. The trial court’s comments appear to reflect a determination that defendant’s alleged violations were sufficiently serious to constitute a revocation of periodic imprisonment and/or probation. However, because the court improperly determined the defendant had unsupervised contact, we believe the court may have sentenced the defendant to a greater term than if the court had only considered the violations of defendant’s periodic imprisonment.

The cause, is, therefore, remanded for the trial court to make further findings. The court is to consider if the violations of defendant’s periodic imprisonment absent his “unsupervised contact” were sufficiently serious to result in a revocation of periodic imprisonment which would constitute a violation of his probation.

If the court so finds, then the defendant shall be entitled to a new sentencing hearing. If the court does not so find, then the defendant shall be allowed to conform to those conditions which might still be effective under his original terms of probation.

We again urge the State and the courts to assure that a probationer receives a definite and memorialized understanding of the terms of his probation to avoid the type of problem encountered here. See People v. Glover (1986), 140 Ill. App. 3d 958, 963.

The judgment of the circuit court of Lake County revoking defendant’s probation is reversed; the cause is remanded; and the five-year sentence is vacated.

Reversed; remanded; and vacated.

INGLIS and BOWMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN PACKARD, Defendant-Appellant.
    Second District
    No. 2 — 89—0913
    Opinion filed November 5, 1991.
    Jed H. Stone, of Urban & Stone, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Brian Packard, appeals from the trial court’s denial of his motions to withdraw his plea of guilty and to reconsider his sentence. We vacate the trial court’s judgment and remand the cause.

Defendant was charged by indictment with three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14) and one count of aggravated kidnapping (Ill. Rev. Stat. 1989, ch. 38, par. 10 — l(a)(l)). All charges arose from an incident which occurred on July 16, 1988, during which defendant secretly confined a girl under the age of 13 against her will and sexually assaulted her. Defendant entered a plea of not guilty to all counts at his arraignment on August 12, 1988. However, following negotiations between defense counsel and the State, defendant pleaded guilty to one count of aggravated criminal sexual assault and the count of aggravated kidnapping on April 17, 1989. Counsel stipulated that, in exchange for the pleas, defendant would receive a sentence of no longer than 55 years and that the remaining two counts, along with a charge of criminal sexual assault in another pending case, would be dismissed. The court accepted defendant’s pleas. Soon after, defendant filed two motions to withdraw his pleas. These motions were denied by the court on May 11, 1989. The court then sentenced defendant to an extended prison term of 45 years for aggravated criminal sexual assault and a concurrent 15-year term for aggravated kidnapping. The court subsequently denied defendant’s motion to reconsider the sentence. This appeal followed.

Defendant first contends that the trial court failed to admonish him properly before accepting his pleas of guilty and that, therefore, he should be allowed to withdraw his pleas. Supreme Court Rule 402(a) provides in part:

“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.” (134 Ill. 2d R. 402(a).)

These requirements need only be substantially complied with to satisfy due process requirements. (People v. Walker (1985), 109 Ill. 2d 484, 498.) Defendant argues that the trial court failed to admonish him properly of the nature of the crime and the minimum and maximum sentences to which he could be sentenced.

We need only address the admonishment regarding the minimum and maximum sentences available. The State agrees that defendant was not so admonished during the hearing at which he pleaded guilty. However, the State argues that defendant was admonished about sentencing possibilities at his arraignment nine months prior to the guilty plea hearing and that such admonition was adequate. Our supreme court has held that the entire record is to be considered in determining whether the defendant understands the nature of the charges to which he is pleading and the sentences that may be imposed. (See People v. Walker (1985), 109 Ill. 2d 484, 499.) However, it has been long held that admonitions given at proceedings prior to guilty plea proceedings do not amount to substantial compliance with Rule 402. (See, e.g., People v. Culbertson (1987), 162 Ill. App. 3d 319, 321-22; People v. Sutherland (1984), 128 Ill. App. 3d 415, 426-27; People v. Porter (1978), 61 Ill. App. 3d 941, 945.) We, therefore, conclude that defendant was not properly admonished about the possible minimum and maximum sentences. The record contains no evidence that defendant was told of the minimum and maximum sentences any time after the arraignment, which was held nine months earlier. The decision to enter a guilty plea is crucial for a defendant; the trial court must determine that the plea was understanding^ and intelligently made. (Porter, 61 Ill. App. 3d at 945.) Accepting a plea made in response to an admonishment given nine months prior violates the purpose of Rule 402 and does not substantially comply with its requirements. A court cannot rely on prior hearings or trial counsel for proper admonishment of a defendant. While Rule 402 only mandates “substantial compliance” with its requirements, the court here never even mentioned the sentencing possibilities. Noncompliance does not equal substantial compliance.

Furthermore, the equities of this case lie with defendant. Defendant first attempted to withdraw his guilty pleas only three weeks after the plea was made and three months before sentence was passed. This is not an instance where the defendant attempted to withdraw his pleas only after receiving a sentence not to his liking. Fairness dictates that defendant be allowed to withdraw his guilty pleas and face trial.

Because of our disposition of this issue, we need not address defendant’s other contentions.

For these reasons, the judgment of the circuit court of Lake County is vacated, and the cause is remanded. The trial court shall allow defendant to withdraw his guilty pleas and stand for trial.

Vacated and remanded.

NICKELS and UNVERZAGT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY C. DENNY, Defendant-Appellant.
    Second District
    No. 2 — 90—0721
    Opinion filed November 5, 1991.

      Randall K. Erler, of Oakbrook Terrace, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

After a bench trial, defendant, Wesley C. Denny, was convicted of battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3) and placed under one year’s court supervision. On appeal, defendant argues that his conviction must be reversed because the State failed to prove beyond a reasonable doubt that his actions were not justified as self-defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1). We reverse and remand.

On Friday, July 14, 1989, at about 5:30 p.m., defendant visited his former wife, Gretchen Denny (Gretchen), at her home in Naperville. The two became embroiled in a heated argument over custody of their four-year-old child, Laura, who was also present. On Monday, July 17, 1989, Gretchen spoke to Naperville police officer Timothy Jordan at the Naperville police station. After listening to Gretchen’s version of her encounter with defendant, Officer Jordan signed a criminal complaint charging defendant with battery. The complaint alleged in part that defendant “grabbed her arm and pushed her onto the floor.”

At trial, Gretchen testified that on the evening of July 14 defendant came by her house to pick up Laura. The two parents started to argue over defendant’s custody rights. Both became angry, and at one point defendant called Gretchen a “slut.” Gretchen was holding Laura against her hip with her left arm. Gretchen started to wave a hairbrush with her right hand at defendant’s face from about a foot away. Defendant told her to stop waving the brush at him, but she persisted. Without Gretchen’s consent, defendant then grabbed her right wrist firmly but without causing pain and took the brush out of her hand. In so doing, defendant twisted Gretchen’s arm up and back over her shoulder, causing her to lose her balance and fall about a foot onto a nearby couch. Defendant tossed the brush onto the floor. The argument ended there, and the two went over to the home of Gretchen’s parents.

Gretchen testified that she received a single bruise, between her wrist and her elbow, from the incident. She denied receiving a bruise near her right thumb and index finger. Gretchen was sure that she told Officer Jordan about the hairbrush even though nothing to that effect was in Officer Jordan’s police report. She also stated that the report’s statement that defendant pushed her was inaccurate.

Officer Jordan testified that on Monday, July 17, 1989, Gretchen told him at the police station that on Friday she had a disagreement with defendant in which defendant grabbed her and pushed her to the floor. While interviewing Gretchen, Officer Jordan noticed a fairly large bruise on her right arm between the elbow and wrist and a greenish bruise near the right wrist and thumb. She told him that both bruises resulted from defendant grabbing her. She also told Officer Jordan that her buttocks were sore as a result of defendant’s pushing her onto the floor. Officer Jordan did not recall Gretchen mentioning a hairbrush. After he told her that defendant would be charged with battery, Gretchen became hesitant to pursue the matter. She did not ask that defendant be charged and did not sign a complaint.

Defendant testified that on the evening of July 14 he arrived at Gretchen’s house to pick up Laura for the weekend. He and Gretchen started to argue heatedly about visitation on some later date. Gretchen, who was holding Laura on her hip with her left hand, started waving a hairbrush with her right hand at defendant’s face from about six inches away. Fearing the brush might hit him, defendant asked Gretchen to stop. When she persisted, he reached out, grabbed her wrist with one hand, took the brush from her with his other hand, and tossed the brush to the floor. He did not push Gretchen; rather, she stepped back against the couch and sat down on it. Defendant allowed that after he took the brush, Gretchen was probably off-balance as she stepped back toward the couch.

The trial judge found defendant guilty of battery and did not rule on defendant’s argument that his actions were justified by the need to defend himself against the danger of his former wife striking him with the hairbrush. The judge emphasized the discrepancies between Gretchen’s testimony and what she earlier told Officer Jordan. He believed she had committed perjury because she did not want to “get someone in trouble.” Specifically, the judge found that the hairbrush was not part of the incident, as Gretchen had not mentioned it at all to Officer Jordan. The judge reiterated these conclusions in denying defendant’s post-trial motion.

Where the evidence is sufficient to raise the issue, the State must prove beyond a reasonable doubt that the defendant’s actions were not justified as self-defense. (People v. Tirrell (1980), 87 Ill. App. 3d 511, 517.) When considering a challenge to the sufficiency of the evidence, we are not to retry the defendant. (People v. Steidl (1991), 142 Ill. 2d 204, 226.) Rather, we must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Under this standard, the fact finder and not the reviewing court is primarily responsible for determining the witnesses’ credibility, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence. Steidl, 142 Ill. 2d at 226.

Whether a defendant’s actions constituted justifiable self-defense is a question for the fact finder. (People v. Cochran (1989), 178 Ill. App. 3d 728, 738.) As relevant here, self-defense is a justification for the use of force against another when and to the extent a defendant reasonably believes that it is necessary to defend himself against another’s imminent use of unlawful force. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) Self-defense therefore consists of six elements: (1) force is threatened against a person; (2) that person is not the aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; (5) the person threatened actually believes that (a) danger exists, (b) the use of force is necessary to avert the danger and (c) the kind and amount of the force that he uses are necessary; and (6) these beliefs are reasonable. Cochran, 178 Ill. App. 3d at 737; People v. Christiansen (1981), 96 Ill. App. 3d 540, 542-43.

Defendant asserts that the evidence was insufficient to negate his claim of self-defense. Defendant’s brief appears to argue that the trial judge erred in rejecting the account of events that both he and the complaining witness set forth in their testimony. Defendant urges that this account shows that he did only what was necessary to protect himself against Gretchen’s aggressive behavior. We agree in part.

Here the complaining witness allegedly gave two different versions of defendant’s behavior. Her testimony under oath established the existence of a viable self-defense regarding the hairbrush. Her prior inconsistent statement, which was related to the court through the testimony of Officer Jordan and which was hearsay, did not. The court, in determining that self-defense was not a viable issue, considered the hearsay/prior inconsistent statement as substantive evidence. The court committed reversible error when it considered Gretchen’s prior inconsistent statement as substantive evidence. Section 115 — 10.1 sets forth the criteria by which hearsay may be admitted for substantive purposes. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1.) In order to be substantively admissible the statement had to be, inter alia:

“(1) *** made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1.)

Gretchen’s prior inconsistent statement met the first two criteria set forth in section 115 — 10.1 but did not meet the criteria immediately above. Her prior statement was not under oath, nor was it written or signed by her. She did not acknowledge the making of the statement as testified to by Officer Jordan, nor was her statement accurately recorded by audio or videotape or other similar electronic means of sound recording. The trial court’s determination that the hairbrush did not exist and there was no viable self-defense was not supported by substantive evidence. The only substantive evidence of record established the existence of the hairbrush and its “use” by Gretchen.

The trial judge did not have the prerogative to decide which or how much of Gretchen’s account to believe. The evidence presented at trial raised material issues of fact regarding the affirmative defense raised by defendant. The trial court failed to consider these issues of fact and to determine the merit of defendant’s affirmative defense.

We believe there was sufficient evidence presented that a trier of fact could have found defendant guilty beyond a reasonable doubt, even considering the merits of the affirmative defense. Therefore, double jeopardy did not attach, and the matter is remanded for a retrial before a different judge.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded for retrial before a different judge.

Reversed and remanded.

GEIGER and NICKELS, JJ., concur.


author: JUSTICE GEIGER JUSTICE WOODWARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRAVIS CLARK, Defendant-Appellant.
    Second District
    No. 2 — 90—0742
    Opinion filed October 22, 1991.
    — Rehearing denied December 10, 1991.

      WOODWARD, J., dissenting.
    John M. Nelson, of Rockford, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Eugene J. Kennelly, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Travis Clark, was convicted of felony theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)) and was fined $100, assessed costs and sentenced to 12 months’ of conditional discharge. On appeal, the defendant contends he was not proved guilty beyond a reasonable doubt of aiding and abetting the theft of a tile saw machine by a fellow employee and was, at most, an accessory after the fact.

At the trial, Officer Brogan of the Itasca police department testified that he was driving through an industrial area of Itasca on Saturday, December 9, 1989. The businesses were closed that morning. As he pulled his patrol car into the lot of Barco Manufacturing, a passenger car drove out of the lot -with a Century Tile truck behind it. Brogan waved to the car, which then pulled alongside him. Brogan asked the driver what he was doing there, to which the man responded, “I was talking to a friend.” Brogan asked him if he would stop and talk for a minute, but the driver sped away. Brogan backed his car and gave chase, pursuing him all over the industrial area. The driver found himself in a construction site, put the car in reverse, and then jumped out of the car, which continued moving in reverse until it hit a bulldozer. Brogan and other officers pursued the man on foot until they captured Kenneth Broughton, whom they arrested on a variety of charges.

After the chase began, the defendant, driving the Century Tile truck, pulled out of the Barco lot in a normal fashion. Brogan had not had any communication with the truck’s driver. After the arrest of Broughton, Brogan returned to the Barco lot, where he found a boxed tile-cutting machine in a dumpster. The box was not heavy, but the weight was awkwardly distributed. He then drove to the Century Tile warehouse nearby. The manager there identified the machine by the serial number on the box. The defendant was supposed to be driving the truck to the Bolingbrook store. Brogan had a radio message sent out to other police districts.

Brogan further testified that a Bolingbrook police officer took the defendant into custody as he drove the truck into the Bolingbrook store lot. The defendant was transferred back to Itasca, where Brogan interviewed him. The defendant said Broughton had loaded the truck. The defendant also told Brogan that Broughton told the defendant to follow him out of the Itasca store and that they pulled into the Barco lot. The defendant claimed he did not know that the cutter was in the truck until he saw it after he stopped in the Barco lot. The defendant said he did not want to be involved in a theft but thought he was on the spot. He helped Broughton put the box in the dumpster. According to Officer Brogan, Broughton explained to the defendant that Broughton would return and retrieve it.

The defendant also wrote a statement for Officer Brogan, in which the defendant claimed he did not know what was on the truck because he did not load it. When he saw the tile cutter, he was shocked and stunned. The defendant told Broughton to get it off his truck because it did not belong there. The only place the cutter would fit was the dumpster, and defendant then helped Broughton pull it off the truck. The defendant wanted to leave before it appeared as if he were the one stealing it. The defendant said he planned to report the theft as soon as he arrived in Bolingbrook.

Officer Harrison testified that the box he helped Officer Brogan pull out of the dumpster was four feet by three feet by three feet and weighed 100 pounds.

Tom Parks testified as the manager of the Century Tile store. He identified the tile-cutting saw by comparing the serial number to that of his records. The retail price was $995. There were no orders for that machine to be shipped. The defendant was assigned to drive a truck to Bolingbrook with samples of tiles, but he was not supposed to be hauling a tile cutter. Parks gave defendant some gas company charge cards to use if he needed gas for the truck. The defendant had no business at Barco. No one else had authority to remove the tile cutter from the Century Tile store.

On December 9, Parks had arrived at work at 9 a.m., but other employees had arrived at 7 or 8 a.m. Broughton operated a forklift machine. Broughton also had a part-time job installing tile for a Century Tile customer.

At the close of the State’s case, the defendant moved for a directed verdict. The State noted defendant’s own statement in which he stated he surmised the tile cutter was stolen but still helped Broughton unload it. The court denied the motion.

The defendant then testified on his own behalf. He was a warehouse worker at Century Tile, pulling orders, cleaning, stacking and doing other tasks. Broughton was a forklift operator there. On December 9, the defendant saw Broughton pulling items off of the racks and moving around the stock. The defendant never talked to Broughton about a tile-cutting saw. After pulling orders and stacking skids, Parks asked the defendant to drive the delivery truck. Driving was not an ordinary part of his job, as he had driven the truck only four times in the 14 months he had worked for Century Tile. Aaron, another employee, loaded the truck, as he usually made the deliveries, and told the defendant it was ready to go. Aaron told the defendant that “they” would buy the defendant breakfast since he was making the delivery and told him to follow Broughton to a McDonald’s restaurant.

Broughton led the defendant down a street and then behind a warehouse. Broughton jumped out of his car and went to the back of the truck and opened the unlocked door. The defendant left the cab and walked around to the back to see what Broughton was doing. Broughton said he was taking the saw that was sitting there. The defendant said, “Why are you doing this? It would look like I’m stealing this if the police would pull back here. *** I said I wouldn’t let him, but he said I was not going to stop him.” Broughton was slightly bigger than the defendant but looked “pretty rough,” and the defendant did not want to fight him. The defendant testified that he was stunned and watched Broughton try to load the saw into the trunk of his car. The box got snagged on the back of the truck, and the defendant helped him unsnag it. Broughton put it in his trunk. The defendant did not know what to do at that time; he was stunned.

The box did not fit in the trunk of Broughton’s car, and he asked the defendant to help him put it in the dumpster. The defendant helped because Broughton had to go back to work, and the defendant thought he could report it when he got to Bolingbrook. The defendant got back into the truck and turned it around. By the time the truck was turned, Broughton was gone. As the defendant headed out, he saw Broughton talking to a police officer and then speeding off with the officer in pursuit. The defendant then drove to Bolingbrook, intending to report the incident to Eddie Payne, the manager there, with whom the defendant felt comfortable because Payne was a former manager in Itasca. The Bolingbrook police arrested him as he approached the store, and he was taken back to Itasca, where he made his statements. The defendant was not under any financial hardship, was not taking drugs, and had no need for more money.

On cross-examination, the defendant stated he worked under Parks for 14 months and was on good terms with him. Parks gave him gas cards to use if the truck needed gas. The defendant travelled about 500 yards from Century Tile to the Barco lot; it took just a minute. It took about 35 minutes to travel to Bolingbrook, about 30 miles away. At the Barco lot, Broughton and the officer went speeding in one direction, but the defendant had to go the opposite way. He did not know what was in the truck when he left Century Tile; the cab was separated from the back, and he did not pull open the back door. The defendant delivered tile; he had never delivered tile saws. The tile saw was sitting right by the door to the back of the truck. When the defendant first pulled into the Barco lot, Broughton told him to help remove the saw, but the defendant refused because he thought Broughton was stealing it. The defendant did help push it out when it got snagged. When it did not fit in the trunk, he helped throw it into the dumpster.

The trial court found the defendant guilty on a theory of accountability. The court stated there was no evidence of a conspiracy or plan or anything remotely suggesting the defendant’s involvement prior to the events in the parking lot. However, the defendant did aid and abet Broughton by unsnagging the box and then hiding it in the dumpster. The trial court also found the defendant possessed criminal intent. The trial court discounted the theory that the defendant was afraid of the reckless Broughton because there was no evidence that the two, who worked together, had a bad relationship. The court surmised that, if the two were going to a restaurant, there was no reason to follow Broughton into the Barco lot; the defendant could have waited on the street. Instead of returning to work only 500 yards away, the defendant drove to Bolingbrook, allegedly to report the theft. These factors suggested to the trial court that the defendant had criminal intent when he helped Broughton.

On appeal, defendant contends that the evidence does not show that he had the intent to facilitate or promote the commission of the offense as required by section 5 — 2(c) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c)). The defendant denies that he aided or abetted the commission of the offense. (See People v. Bailey (1989), 188 Ill. App. 3d 278, 288.) The defendant contends that his participation, if any, came after the commission of the offense, not before or during as required by section 5 — 2(c). Finally, the defendant argues the trial court erred in denying his motion for a directed finding.

We first note that the function of the court of review is to determine whether, viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could find the defendant guilty of all the necessary elements beyond a reasonable doubt. (People v. Pintos (1989), 133 Ill. 2d 286, 291; People v. Collins (1985), 106 Ill. 2d 237, 261.) While some cases involving accomplice liability refer to the reasonable hypothesis of innocence test (see People v. Darnell (1990), 214 Ill. App. 3d 345, 363; People v. Deatherage (1984), 122 Ill. App. 3d 620), Pintos makes clear that the standard to be applied is whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Pintos, 133 Ill. 2d at 291.

The key to the defendant’s argument is the point at which the commission of the offense terminated. Defendant had no knowledge of the removal of the tile saw prior to the opening of the truck in the Barco lot; he could not be convicted of any criminal behavior prior to the time he obtained the mental state of knowledge. If the crime was completed upon the removal of the tile saw from the warehouse by Broughton, the defendant was merely an accessory after the fact and could be at most charged with obstruction of justice; being an accessory after the fact is not a crime in Illinois. (People v. Jones (1980), 86 Ill. App. 3d 278, 282.) Unlike a “getaway driver” situation, in this cause we cannot infer the defendant’s prior knowledge of the plan by his presence at the conclusion of the offense. Thus, the question before us is whether the defendant knowingly aided Broughton before Broughton completed the offense.

The State charged the defendant by complaint with the crime of theft in violation of section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)), to wit: that the defendant knowingly exerted unauthorized control over property of Century Tile, one tile saw, intending to deprive Century Tile permanently of the property. The terms “obtains or exerts unauthorized control” in section 16 — 1(a)(1) are defined in section 15 — 8 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 15 — 8) to include, without limitation, the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.

Using these definitions, we do not believe that the crime was complete until Broughton removed the box from the truck. In a loose sense of the words, Broughton had exerted unauthorized control over the saw, because Parks testified that nobody had the authority to move the saw from the warehouse to the truck. However, at that point there was no permanent deprivation because the truck was still in the control of Century Tile; the saw would have been mysteriously misdirected to the Century Tile store in Bolingbrook. The theft was completed when Broughton removed the saw from the dominion of Century Tile by putting it in his car trunk. He never had possession until that point. Stopping the truck was part of his plan, which would not have succeeded without the stop; he intended to take the saw, not from the loading dock, but from the truck. The defendant helped unsnag the box knowing that Broughton was stealing, during the time in which Broughton was stealing, and knowing that unsnagging the box would help Broughton complete the offense. The defendant knowingly aided and abetted Broughton with the intent to facilitate Broughton’s plan, knowing Broughton was stealing. Thus, the defendant became guilty of theft by means of accountability under section 5 — 2. Furthermore, the trial court’s determination that the defendant’s helping Broughton hide the box in the dumpster was part of the offense was not manifestly erroneous.

The defendant argues, however, that he did not have the requisite intent when he unsnagged the box. The defendant claims he was shocked and did not know what to do when confronted by the unexpected situation. The defendant also claims that he did not specifically intend to help Broughton commit the offense. The defendant claims his behavior was reasonable in the circumstances of being confronted by a reckless and rough character; a tile saw is not worth a fight. To the extent that defendant raises the defense of compulsion, the trial court determined that the threat of imminent bodily harm was not proved. The record supports the trial court’s finding, and we will not reverse it on that ground. Pintos, 133 Ill. 2d at 291.

The record also supports the finding that the defendant knew what he was doing when he unsnagged the box. He knew that unsnagging the box would facilitate Broughton’s removal of it from the truck, which the defendant knew was theft. A defendant’s knowledge may be inferred from the surrounding facts and circumstances (People v. Whitfield (1991), 214 Ill. App. 3d 446, 454), and we conclude the trial court’s interpretation of the present facts is reasonable (see 214 Ill. App. 3d at 454). It is the function of the trial court to assess the credibility of the witnesses, the weight to be given their testimony and the reasonable inferences to be drawn from the evidence. (People v. Creque (1991), 214 Ill. App. 3d 587, 598.) It is not our function to retry the defendant; the evidence supports the trial court, and we will not reverse it. Collins, 106 Ill. 2d at 261.

Finally, the defendant argues that the trial court erroneously denied his motion for a directed finding at the close of the State’s evidence. However, the defendant waived this argument by introducing his own evidence and not renewing the motion at the close of his own evidence. We also note that the defendant’s post-trial motion did not preserve the issue. People v. Hominick (1988), 177 Ill. App. 3d 18, 31.

For the above reasons, the order of the circuit court is affirmed.

Affirmed.

DUNN, J., concurs.

JUSTICE WOODWARD,

dissenting:

The trial court found the defendant guilty on a theory of accountability. Section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2) provides that a “person is legally accountable for the conduct of another when: *** (c) [e]ither before or during the commission of the offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense.” (Emphasis added.)

A person cannot be held accountable as a principal for actions occurring after the offense. (People v. Owens (1975), 32 Ill. App. 3d 893, 896.) The majority here acknowledges that the issue to be determined is whether the defendant knowingly aided Broughton before the offense was completed. Although concluding that the defendant did in fact aid Broughton during the offense, the opinion also contains the following statements:

“Using these definitions, we do not believe that the crime was complete until Broughton removed the box from the truck. *** The theft was completed when Broughton removed the saw from the dominion of Century Tile by putting it in his car trunk.” (Emphasis added.) 221 Ill. App. 3d at 309.

Defendant’s actions consisted of assisting in the removal of the saw from the trunk of Broughton’s car. If, as the majority states, the theft was complete when Broughton either removed the tile saw from the truck or placed it in his car trunk, defendant’s actions clearly took place after the commission of the theft, and, therefore, defendant could not be guilty under an accountability theory.

The majority has correctly stated the facts and the law applicable to the facts but has reached the wrong conclusion. The defendant’s conviction should be reversed.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AURELIANO OCON, Defendant-Appellant.
    Second District
    No. 2 — 89—1173
    Opinion filed November 12, 1991.

      G. Joseph Weller, Robert C. Cooper, and Beth Katz, all of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

After denial of defendant’s, Aureliano Ocon’s, motion to suppress evidence that had been obtained during an inventory search of the trunk of defendant’s car, defendant pleaded guilty to possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 561/2, par. 1401(b)(2)) and was sentenced to four years’ imprisonment. Defendant appeals, asserting that the trial court’s finding that the challenged evidence resulted from a lawful inventory of the contents of the trunk of defendant’s impounded car was against the manifest weight of the evidence because such inventory was merely a retrospective pretext for an unconstitutional investigatory search.

In the early morning hours of January 26, 1989, Officer Alan Trotsky of the Naperville police department and another officer stopped defendant, who was driving a 1978 Oldsmobile, because the registration displayed on the Oldsmobile was that of a 1987 Honda. Two passengers accompanied defendant. Upon initially stopping defendant’s car, Officer Trotsky observed a “furtive movement in the vehicle.” More specifically, the officer saw a “bending down motion, as if someone was tucking something under a seat or grabbing for something underneath the seat.” The officer, therefore, searched the interior of the car for weapons after all of the occupants left the car, a search that defendant does not challenge.

Because defendant did not have a valid driver’s license, he was placed under arrest for operating a car without a license. Defendant’s subsequent custodial search resulted in the seizure of $622 from his pants pocket. One of defendant’s passengers also had no valid driver’s license. The third occupant of the car had a driver’s license, but because he failed to give the officer his correct name, the officer believed that he, too, did not possess a driver’s license.

Because none of the occupants could legally drive the car, Naperville police procedures required that it be towed to a police impound. Such procedures further required that an inventory be taken before the car was moved. Without asking defendant’s permission, the police removed the keys from the car and opened the trunk, where 6.18 grams of a substance containing cocaine were found. The police procedures further required that both a tow request and an inventory report be completed, and Officer Trotsky initially testified that he believed he had completed such forms.

Defendant moved to suppress the evidence of the cocaine taken from the trunk of his car, asserting that the inventory was merely a pretext for an investigatory search and that Officer Trotsky’s statement in his written report that “[d]ue to the furtive movement in the vehicle and the occupants all not having valid driver’s licenses, an inventory search of the vehicle was conducted prior to the tow” indicated such pretext. However, the officer repeatedly denied that the “furtive movement” prompted the search of the trunk. The officer testified that “[t]he furtive movement within the main container of the vehicle had no purpose for me going into the trunk looking for weapons.” The court denied defendant’s motion to suppress the evidence, finding that the failure of any of the occupants to possess a driver’s license, which was the second half of the reason given in the officer’s written statement, prompted the tow, which had in turn prompted the inventory.

Defendant sought production of both the written police procedures for the towing and inventory of impounded cars and the actual inventory and tow reports relating to defendant’s auto and, further, moved for reconsideration of the denial of his motion to suppress. Although the State produced the police procedures, it was unable to produce either the inventory or tow report. On the representations of the assistant State’s Attorney, the second police officer, who was not a street officer familiar with the inventory procedures, actually conducted the inventory of the trunk and failed to complete the form. On reconsideration after reviewing the transcript of the officer’s testimony, a second court commented that “there may have been a dual purpose in looking in the trunk, but that doesn’t make it an invalid inventory search.” The court found that “the vehicle had to be towed, and *** according to their regulations they had to search the vehicle.”

Defendant appeals, asserting that the court’s finding that the search was a lawful inventory search was against the manifest weight of the evidence. Specifically, defendant asserts that the statement in the officer’s written report that the search was prompted in part by the furtive movement in the car combined with the failure to comply with the requirements of the police department’s standardized procedure and complete an inventory or tow report indicate the officer’s subjective motivation to investigate rather than inventory the contents of the car. We note that defendant does not challenge the officers’ stop of his car or his arrest, or even the towing of his car. Rather, defendant asserts that an otherwise valid inventory search is rendered invalid by the presence of an officer’s subjective improper motivation. We disagree.

On a motion to suppress, the defendant has the burden to prove that the search and seizure of evidence were unlawful. (Ill. Rev. Stat. 1987, eh. 38, par. 114 — 12(b); People v. Hoskins (1984), 101 Ill. 2d 209; People v. Braasch (1984), 122 Ill. App. 3d 747, 751.) A trial court’s determination on such motion will not be reversed unless it is found to have been clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99.) Because defendant does not challenge the officer’s testimony, we need only determine whether, as a matter of law, the officer’s dual motive for the inventory search of defendant’s trunk satisfies the fourth amendment’s requirements of reasonableness. See Clark, 92 Ill. 2d at 99.

The inventory of the contents of cars taken into police custody fulfills the community caretaking function of the police. (South Dakota v. Opperman (1976), 428 U.S. 364, 369, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3097.) Thus, inventory searches are a well-established exception to the warrant requirements of the fourth amendment. (Colorado v. Bertine (1987), 479 U.S. 367, 371, 93 L. Ed. 2d 739, 745, 107 S. Ct. 738, 740-41.) Probable cause, which is peculiar to criminal investigations, is unrelated and of no help in the reasonableness analysis required under the fourth amendment for routine administrative caretaking functions such as inventory searches. (Bertine, 479 U.S. at 371, 93 L. Ed. 2d at 745, 107 S. Ct. at 740-41.) Rather, the reasonableness of such procedures arises from three legitimate objectives of inventory searches: to ascertain the extent and value of property needing protection while in police custody; to protect the police against claims or disputes over lost or stolen property; and to protect the police from potential danger emanating from items of personal property such as drugs or guns that may be found within a car. Opperman, 428 U.S. at 369, 49 L. Ed. 2d at 1005, 96 S. Ct. at 3097; People v. Clark (1976), 65 Ill. 2d 169, 174.

Inventory searches conducted in accordance with standardized procedures, which tend to ensure that the intrusion is limited in scope to only the extent necessary to carry out the caretaking function of the police, are reasonable for purposes of the fourth amendment. (Opperman, 428 U.S. at 374-76, 49 L. Ed. 2d at 1008-09, 96 S. Ct. at 3099-3100.) It is the standardized nature of an inventory search, which limits an officer’s discretion to determine the scope of the search, that ensures that the inventory search will not be purposefully used as an investigatory tool. Bertine, 479 U.S. at 376-77, 93 L. Ed. 2d at 748-49, 107 S. Ct. at 743-44 (Blackmun, J., concurring).

In this instance because of the inability of any of the occupants to legally drive defendant’s car, police procedures dictated that it be towed to an impound lot. Further, prior to such tow, the same procedures required that the contents of defendant’s car be inventoried. Thus, absent improper motive, defendant concedes that the inventory search was reasonable. Defendant, however, asserts that the officers’ possible dual motivation invalidates the otherwise lawful inventory.

The Court has not had occasion to address the issue of the effect of an officer’s subjective improper motive on the validity of an objectively reasonable inventory search. However, the logic and reasoning of the Court in refusing to impose a “less intrusive means” analysis on officers in the course of their daily duties, which instead adopted the objective criteria of standard police procedures to determine the reasonableness of an inventory search, is equally applicable in this instance.

In Illinois v. Lafayette (1983), 462 U.S. 640, 647, 77 L. Ed. 2d 65, 72, 103 S. Ct. 2605, 2610, the Court expressly rejected the “less intrusive means” logic, which prior to that decision was the law in Illinois. (See People v. Bayles (1980), 82 Ill. 2d 128, 142-43.) The reasonableness of an inventory procedure does not depend on the lack of existence of less intrusive means because “it [is] unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding” whether an inventory search is necessary or whether less intrusive means will secure the objectives of such searches. (Lafayette, 462 U.S. at 648, 77 L. Ed. 2d at 72, 103 S. Ct. at 2610-11.) Rather, standardized police procedures for inventory searches by their nature eliminate an officer’s discretion to determine the scope of the search and similarly eliminate any effect of an improper subjective motive to use such inventory as an investigatory tool. Bertine, 479 U.S. at 376-77, 93 L. Ed. 2d at 748-49, 107 S. Ct. at 743-44 (Blackmun, J., concurring).

In the identical context of a motion to suppress evidence obtained in violation of a defendant’s fourth amendment rights based on the analogous situation of an unreasonable stop, the trend is to determine whether the stop was objectively reasonable. (People v. Perry (1990), 204 Ill. App. 3d 782, 786; People v. Guerrieri (1990), 194 Ill. App. 3d 497, 501-02; People v. Hattery (1989), 183 Ill. App. 3d 785, 813-19; People v. Anderson (1988), 169 Ill. App. 3d 289, 294-98.) If objectively reasonable, such stop is not invalidated by either an officer’s solely improper motivation or by dual motivation. Perry, 204 Ill. App. 3d at 786.

Defendant also asserts that the officers’ conduct in failing to complete required forms evidences that the inventory was merely a pretext for an investigatory search. However, we need not address the officers’ failure to complete the appropriate forms after the fact of the inventory, which does not affect the objective reasonableness of the police procedures themselves. See Bertine, 479 U.S. at 369, 93 L. Ed. 2d at 744, 107 S. Ct. at 740 (“slipshod” manner of inventory search did not affect reasonableness).

Each of the cases cited by defendant was decided prior to Bertine, and most even prior to Lafayette. Further, such cases were decided before the objective standard was adopted by the Illinois Appellate Court to evaluate the analogous reasonableness of a police stop. Thus, the officers’ conduct in inventorying the contents of the trunk of defendant’s car must be tested against an objectively reasonable standard. Because the officers’ compliance with specific, standard police procedures was objectively reasonable, the trial court did not err in denying defendant’s motion to suppress evidence.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE DUNN

text:
    MARK HOLMSTROM et al., Plaintiffs-Appellees, v. PAUL KUNIS et al., Defendants-Appellants.
    Second District
    No. 2 — 91—0074
    Opinion filed November 7, 1991.
    David J. Costello, of Krupa & Braun, Chartered, of Flossmoor, and Arvid C. Johnson, of Oak Lawn, for appellants.

      Jerome E. Riley and Barbara J. Gosselar, both of Kubiesa & Power, Ltd., of Westmont, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants Paul Kunis and Thomas Spangler own the partnership that was the general contractor under a contract to build a home for plaintiffs, Mark and Geri Holmstrom. Defendant Travis Gravitt owned the company that subcontracted to install the sewer connection for plaintiffs’ home. Plaintiffs sued all three defendants for breach of contract, alleging primarily that defendants did not install the sewer connection in a good and workmanlike manner. Plaintiffs obtained a default judgment against Gravitt and a judgment after a bench trial against Kunis and Spangler.

Defendants appeal, arguing that (1) the default judgment against Gravitt barred any judgment against Kunis and Spangler on the same contractual obligation; (2) plaintiffs failed to prove that defendants installed the sewer connection other than as directed by local officials; and (3) the trial court applied an improper measure of damages. We affirm.

Count I of plaintiffs’ complaint, as finally amended, alleged the following facts. On or about May 1, 1987, defendants Kunis and Spangler, doing business as P.E.C. Construction, entered into a written agreement with plaintiffs to build a single-family home on plaintiffs’ land in Clarendon Hills. As general contractors, Kunis and Spangler agreed to perform the construction, including connection of the sanitary sewer system, in a good and workmanlike manner. Plaintiffs performed all of their obligations under the contract, but Kunis and Spangler breached the contract by failing to connect the sewer properly. Count I of the plaintiffs’ complaint prayed that Kunis and Spangler be held jointly and severally liable on the construction contract.

Count II of the complaint alleged that Kunis and Spangler subcontracted the sewer connection work to Travis Gravitt and Tri-Plex Construction, Inc. (Tri-Plex). Because Gravitt and Tri-Plex knew or should have known that this subcontract was for the plaintiffs’ benefit, they were jointly and severally liable to plaintiffs for breaching this contract by failing to connect the sewer properly.

Plaintiffs’ original complaint sought damages of $51,340.72 plus attorney fees and costs. Of the $51,340.72, $26,340.72 represented what plaintiffs were forced to pay Du Page County (the county) for proper connection for the sewer service, and the remaining $25,000 represented damages from plaintiffs’ inability to secure financing for the property.

Plaintiffs obtained a default judgment against Gravitt for $26,340.72. After obtaining this judgment, but before trial, plaintiffs amended their complaint to increase the damages sought from $51,340.72 plus attorney fees and costs to $75,057.68 plus attorney fees and costs and interest at 8% on the amount owed to the county.

Before trial, Kunis and Spangler moved to dismiss the complaint, arguing that the cause of action against them merged into the default judgment against Gravitt. The court denied the motion, and the case went to trial.

Mark Holmstrom testified that he owned and resided at the property in dispute. In 1986, intending to build a new residence, he purchased the lot. Because he planned at first to be his own general contractor, he obtained a building permit and sewer permit from the county. The next year, he decided to hire P.E.C. as general contractor. Holmstrom and P.E.C., represented primarily by Kunis, negotiated the written building contract. When Holmstrom signed the contract, it was his understanding that P.E.C. would, as general contractor, hire all subcontractors and obtain any bonds or permits necessary from then on.

The building, including the sewer hookup, was completed in or around November 1987. About a month and a half after the initial hookup, Holmstrom learned that there was a problem with the sewer connection, necessitating reexcavation of the street. After the reexcavation work was finished, plaintiffs received written notice from the Du Page County Sanitary District that the water to plaintiffs’ residence would be shut off unless they paid their bill. Holmstrom notified Kunis and Spangler about the problem. They assured him that they would resolve the matter, but to his knowledge they never did. Also, P.E.C. had not repaired other problems with the house, including a leaky roof and a broken door lock.

Early in 1988 Holmstrom obtained a construction loan on the premises. Originally the loan was to last three months, with interest payments monthly. Holmstrom ended up paying about $18,200 interest over 18 months. The bank would not close the loan because the county had placed a lien on his house. The lien was still there at the time of trial. Early in 1988, Holmstrom applied for a mortgage at 9.875% interest. He obtained the mortgage in October 1989. By then he had to agree to pay 10.5% interest. Plaintiffs deducted the interest payments on the loan and mortgage in figuring their Federal income tax liability for 1988 and 1989.

The county sent plaintiffs a bill for $26,342.72, representing the cost of repairing damage to the sewer system from the reexcavation. Plaintiffs signed an agreement with the county by which they acknowledged owing the money and promised to pursue their legal remedies against all defendants. The county promised not to terminate plaintiffs’ sewer or water service. On December 12, 1989, plaintiffs and the county agreed further that if by January 1, 1990, plaintiffs had not successfully collected from any of the defendants, interest of 8% per annum would begin to accrue on the amount due. As of the trial, plaintiffs had paid none of the money due under the agreement.

Holmstrom had no personal knowledge of what caused the problems with the sewer connection. The county did not inform him in advance of any potential problems with the sewer.

Edward Worth, county sewer inspector with the Du Page County public works department, testified that on November 5, 1987, he attempted unsuccessfully to inspect the connection from the main sewer line to plaintiffs’ residence. He arrived at the site at 1:30 p.m., about an hour before the scheduled time. He discovered that Tri-Plex had covered the connection with stone. He therefore could not see the connection at all. Worth spoke to Dan Thomas and to someone from Tri-Plex, asking them to reexcavate so that he could inspect the connection. The two, testified Worth, “hemmed and hawed,” telling Worth that it would cost too much to reexcavate. Worth replied that he could not accept the connection unless he inspected it personally. At that point Thomas represented that he was the builder and would accept full responsibility for the connection if Worth would allow them to keep filling in the hole. Worth acquiesced.

Worth subsequently heard that the connection was malfunctioning. Sewage was backing up into the residence. Eventually, using a videotape of the inside of the sewer main, Worth determined that the problem was with the connection to plaintiffs’ residence.

Worth was present at the reexcavation in January 1988. When the connection was uncovered, he saw that a piece of pipe was sticking into the sewer main. Worth saw no saddle of any kind around the pipe, though there may have been some concrete to hold the pipe in place. Worth testified that the county did not accept this procedure and that the contractor never asked his office about what saddles the county would accept. In his 20 years of inspecting sewer and water mains, Worth had never seen a connection such as this.

According to Worth, the excavation took up a space approximately 30 feet "wide, 30 feet long and 24 feet deep. Tri-Plex did not use a trench box or anything comparable to guard against cave-ins, used an insignificant amount of shoring inside the hole and installed no fencing barricades to protect the site overnight.

On cross-examination Worth acknowledged the theoretical possibility that the collapse of the sewer main could cause a connection to fall into the main. He insisted that such a possibility would not explain how the pipe here became stuck in the main. Moreover, he maintained, there was nothing wrong with the condition of the main at that point. The main had not collapsed and had caused no problems since the reexcavation.

Edward Smith, township highway commissioner for the Village of Downers Grove, testified that he was familiar with the construction in this case, as the street involved was part of the township road system. When area residents alerted him to the reexcavation in January 1988, he visited the site. Smith asked Travis Gravitt why Tri-Plex had not obtained a permit, posted a bond, or provided a certificate of insurance to Smith’s office; Gravitt walked away without answering. Smith could see that there had been cave-ins at the site and that TriPlex had provided no trench box or comparable protection against this danger.

Smith concluded that the site was unsafe for workmen and so informed the township attorney. After inspecting the site, the township attorney agreed with Smith and asked Tri-Plex to leave the project. Both safety problems and the lack of a bond or certificate of insurance motivated this request.

Geri Holmstrom testified that plaintiffs moved into the new house only after receiving the occupancy permit in June 1988. She had no direct knowledge of the problems with the sewer connection. After moving in, she received a notice from the county threatening to shut off the water. Holmstrom called Spangler, who assured her that P.E.C. would take care of the problem. To the best of Holmstrom’s knowledge, P.E.C. did nothing more about the matter. The county’s notice specified that plaintiffs could appeal, but plaintiffs neither did so nor informed P.E.C. of the appeal process.

Gregory Wilcox, director of the Du Page County Department of Environmental Concerns, testified that he authorized work on the job-site after Edward Smith and the township attorney told him that they believed the site was unsafe. A field crew Wilcox sent reported that the site was unsafe and that the sewer connection itself was improperly installed. Wilcox arranged for Abbott Construction to complete installation of the main over the weekend. Wilcox billed plaintiffs for the cost of finishing the work. None of the bill had been paid as of the trial.

Defendants’ first witness was Paul Kunis. Kunis testified that when he and plaintiffs negotiated the contract, plaintiff Mark Holmstrom informed him that he (Holmstrom) already had all the necessary permits, bonds and surveys needed to start building. Holmstrom informed Kunis that the latter need not worry about permits and showed Kunis his county building permit. Kunis never specifically asked plaintiffs to show him the necessary street bond; he relied on their representations and their possession of the building permit. According to Kunis, a street bond is a prerequisite for a building permit in unincorporated Du Page County. A construction bond normally is good for a year; one obtained in June 1987 thus would have been in effect in January 1988. Kunis acknowledged that the “hard card” that plaintiffs showed him was issued in June 1986 and that any bond that had been obtained would have expired by June 1987. However, although insurance companies customarily send out notice that bonds are about to expire (and may be renewed), Kunis was never so notified.

When a local official informed him that mud was going into plaintiffs’ sewer line, Kunis told plaintiffs that he had asked Tri-Plex to reexcavate the site and work on the problem.

According to Kunis, P.E.C. fixed the problems "with the floor and roof before plaintiffs moved in. Plaintiffs paid Kunis in full for the house and, other than this lawsuit, did not demand money back for necessary repair work.

Defendants next called Thomas Pauley, Tri-Plex’s foreman on the sewer connection. Pauley disagreed with Edward Worth’s statement that Tri-Plex had not used a saddle in making the connection. The clay piping itself was a saddle, and the connection met governmental specifications. According to Pauley, Worth saw the clay piping at the time of the original connection and never told anyone from Tri-Plex that the connection was improper.

When Tri-Plex reexcavated, Pauley saw nothing improper with the original hookup except that the saddle had broken into the main, which appeared to be at least 25 years old.

On cross-examination, Pauley conceded that when Worth arrived to inspect the original connection, Tri-Plex had already covered the connection with stone. He explained that Tri-Plex did so because Worth was several hours late and a cave-in was possible. He conceded that Worth could not have seen the connection at this time unless the hole was uncovered.

Pauley acknowledged that Dan Thomas was on site for the original connection. Thomas signed a contract on behalf of P.E.C., hiring Tri-Plex as subcontractor.

Travis Gravitt was director of Tri-Plex at the time it subcontracted the sewer connection work for plaintiffs. He testified that before performing the original hookup, he telephoned Edward Worth, who told him that the county required a clay saddle for the clay pipe involved in the project. On the day of the connection, November 5, 1987, Worth showed up early but left and did not return until around 1:30 or 2:30 p.m.

In January 1988, according to Gravitt, Worth informed Tri-Plex that there was mud in the sewer. Tri-Plex investigated and discovered that the sewer main had collapsed. Tri-Plex attempted to repair the problem, but was asked to leave early on the second day of the repair work.

Gravitt recounted that Mark Holmstrom came to the jobsite on the second day of the reexcavation, before Tri-Plex was asked to leave. Gravitt testified that when he asked Holmstrom for some bonds, Holmstrom told him that he would go to the township office and get everything straightened out. On cross-examination, Gravitt recalled that Dan Thomas was also at the site that morning and had assured Gravitt that Mark Holmstrom had all of the bonds and was going to straighten things out with the township. It was possible, conceded Gravitt, that Thomas also told township officials at the site that Thomas would make sure that “[h]e gets everything up there that he needs.”

According to Gravitt, nobody told Tri-Plex of any deficiencies in its safety equipment on the first day of the reexcavation. Both TriPlex and the county supplied barricades, and the county never told Tri-Plex that it did not have enough of them.

Gravitt was a director of Tri-Plex from its inception. Tri-Plex issued no stock, and nobody made any capital investments. By the time of trial, Tri-Plex was no longer operating and had no assets.

Plaintiffs called Mark Holmstrom in rebuttal. He testified that after construction began he never assured Gravitt or anyone else that he would obtain the necessary bonds. He never assured anyone that he had everything necessary to complete the contract. He obtained a driveway entrance bond along with the construction permit and had originally planned to build the home “completely off that permit.” When he started negotiations with P.E.C., Holmstrom informed Kunis that he had obtained the permit and the driveway entrance bond.

Holmstrom stated that he stopped at the construction site about 20 times. He never spoke with Travis Gravitt, but heard some conversations about bonds. He had no personal knowledge of what happened with the sewer main.

The trial court found that defendants had breached their contractual duty to perform in a good and workmanlike manner, had not timely corrected the breach, and were liable to plaintiffs for $65,000 in damages, including attorney fees. Defendants then brought this appeal.

Defendants argue first that the trial court erred in not dismissing plaintiffs’ suit against Kunis and Spangler after plaintiffs obtained a default judgment against Gravitt. Defendants argue that the cause of action against Kunis and Spangler merged into the judgment on the same contract against Gravitt, preventing any further recovery. We disagree.

Under the common-law doctrine of merger, a judgment against fewer than all joint obligors on a contract will bar future recovery against any of the remaining joint obligors. (See, e.g., Jansen v. Grimshaw (1888), 125 Ill. 468, 474.) Illinois, however, has departed from the common-law rule and now declares that all joint contractual obligations are also joint and several obligations (Ill. Rev. Stat. 1989, ch. 76, par. 3). Section 2 — 410 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 410) therefore provides that “[a]ll parties to a joint obligation *** may be sued jointly, or separate actions may be brought against one or more of them. A judgment against fewer than all the parties to a joint or partnership obligation does not bar an action against those not included in the judgment or not sued. Nothing herein permits more than one satisfaction.” (Emphasis added.) (See also Handley v. Unarco Industries, Inc. (1984), 124 Ill. App. 3d 56, 67.) The judgment against Gravitt thus did not bar the plaintiffs from suing Kunis and Spangler.

Defendants raise two other points against the judgment. The first is that (to quote their brief) “[pjlaintiff [sic] failed to prove that defendant [sic] did not install the subject sewer in a manner other than as was [sic] directed by the County of Du Page.” Defendants’ sole argument in this regard is to reproduce two pages of testimony by Travis Gravitt and to assure us that it proves their point. Defendants’ reply brief reproduces testimony from Thomas Pauley, again without substantial elaboration.

Defendants argue second that the trial court failed to apply the accepted rule of law in determining damages. Defendants’ only authority is a case discussing damages against a defendant who has substantially performed in a workmanlike manner — which the trial court expressly found was not true of defendants here. Citing neither authority nor the record, defendants also argue that the parties did not contemplate the damages here when they drafted the contract.

We do not reach the merits of either argument as neither has been properly presented on appeal. Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) admonishes appellants that arguments in an appellant’s brief shall include “citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length ***. *** Points not argued are waived and shall not be raised in the reply brief *** >>

A reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent arguments presented; arguments inadequately presented on appeal are waived. (Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401; Hutchings v. Bauer (1991), 212 Ill. App. 3d 172, 183.) Statements unsupported by argument or citation of relevant authority do not merit consideration on review. (Hutchings, 212 Ill. App. 3d at 183; People v. Trimble (1989), 181 Ill. App. 3d 355, 356.) A reviewing court will not become an advocate for, as well as the judge of, points the appellant seeks to raise. Trimble, 181 Ill. App. 3d at 356.

Defendants have barely articulated, much less properly supported, grounds for disturbing the trial court’s findings. Rather, they ask this court to comb the record for them to uncover possible trial court error. We decline to do so. We do note that our independent examination of the record does not persuade us that the trial court committed any reversible error.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

BOWMAN and UNVERZAGT, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    ROBIN A. TRETTENERO, Plaintiff-Appellant, v. THE CIVIL SERVICE COMMISSION OF THE CITY OF AURORA et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0245
    Opinion filed November 6, 1991.
    Thomas F. McGuire and John H. Kelly, both of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.
    Paul L. Greviskes, of Batavia, for appellee Civil Service Commission of City of Aurora.
    Michael Weinstein, City Attorney, of Aurora, for other appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Robin A. Trettenero, appeals from the judgment of the circuit court of Kane County which, on administrative review, affirmed the decision of defendant, the Civil Service Commission of the City of Aurora (Commission), to deny her a hearing regarding a suspension without pay. The sole issue raised by plaintiff on appeal is whether the decision of the Commission denying her request for a hearing was arbitrary and unreasonable. We affirm.

Plaintiff filed her complaint for administrative review on August 23, 1990. She named the Commission, the five individual members of the Commission and Robert C. Wadman, chief of police of the Aurora police department, as defendants. We note here that Wadman was separately represented in the trial court and has also filed a separate brief on appeal. However, his arguments are essentially the same as the arguments raised by the other defendants, and, for purposes of this appeal, we shall refer to Wadman and the other defendants collectively as “defendants.”

Plaintiff alleged in her complaint that she was a member of the Aurora police department. On May 17, 1990, Wadman issued an order suspending her for a period of three days. Plaintiff appealed this suspension to the Commission on May 18, 1990. On July 23, 1990, the Commission denied plaintiff a hearing regarding the suspension. Plaintiff sought an order directing the Commission to provide her with a hearing to review the three-day suspension.

Defendants filed two motions to dismiss plaintiff’s complaint. In the motions, defendants alleged that the City of Aurora, a home rule unit, and the Association of Professional Police Officers, Inc., entered into a collective bargaining agreement (labor agreement) on June 7, 1988, which covered all patrol officers in the Aurora police department. They also alleged that plaintiff was covered by the labor agreement, that the labor agreement contained a grievance procedure for contesting suspensions and that plaintiff did, in fact, contest the suspension imposed through the grievance procedure. On June 8, 1990, plaintiff’s three-day suspension was reduced to a one-day suspension by Wadman following a hearing pursuant to the grievance procedure. Defendants attached to their motions a copy of the labor agreement, including the provisions setting out the grievance procedure, and the documents showing that plaintiff pursued the grievance procedure. Defendants argued that plaintiff’s complaint should be dismissed because plaintiff’s sole remedy was the grievance procedure included in the labor agreement.

Defendants later filed a reply to plaintiffs response to their motions to dismiss and attached a copy of the relevant provisions of the Aurora Code of Ordinances. Defendants also filed an answer to the complaint which consisted of the transcript of the July 19, 1990, meeting of the Commission and the minutes of that meeting. The transcript and minutes show that one of the reasons given by the Commission for determining that plaintiff was not entitled to a hearing was that an ordinance of the City of Aurora clearly stated that her remedy was through the labor agreement.

Following a hearing, the trial court denied defendants’ motions to dismiss. Another hearing was held regarding the merits of plaintiff’s complaint. At that hearing, plaintiff’s attorney stated that plaintiff had no objection to the documents presented to the court by defendants. The court later affirmed the decision of the Commission, finding that the decision “was contrary to neither the law nor the evidence.” This timely appeal followed.

Plaintiff argues on appeal that the ruling of the trial court should be reversed because she was entitled to a hearing before the Commission under the provisions of section 10 — 1—18(b) of the Illinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1— 18(b)). She contends that this right could not be altered by the local rules of the Commission or by the labor agreement.

There is no dispute that the City of Aurora is a home rule unit. There is also no dispute that the City of Aurora has adopted and is operating under division 1 of article 10 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, pars. 10 — 1—1 through 10 — 1—48), which provides for a civil service system in municipalities. Section 10 — 1—18 of the Municipal Code was amended, effective January 1, 1988, to state, in pertinent part:

“Nothing in this Division 1 limits the power of the chief officer of a police or fire department to suspend a subordinate for a reasonable period, not exceeding 5 calendar days, provided the civil service commission is promptly notified thereof in writing. Any employee or officer so suspended shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension.” Ill. Rev. Stat. 1989, ch. 24, par. 10 — 1—18(b).

As previously noted, plaintiff claims that this statute clearly entitles her to a hearing before the Commission even though she also had a remedy through the grievance procedure contained in the labor agreement. We note that plaintiff has not argued that the grievance procedure was in any way inadequate but only that, under the statute, she is also entitled to a hearing before the Commission.

Defendants argue, however, that a home rule unit has the authority to limit the protections prescribed in division 1 of article 10 of the Municipal Code and that the City of Aurora has done so by a properly enacted ordinance. We agree with defendants and conclude that this argument is dispositive. Inexplicably, plaintiff has never addressed this argument although it was raised by defendants in the trial court and again on appeal.

It is well established that a municipality which has adopted the optional civil service system provided for in article 10, division 1, of the Municipal Code may, as a valid exercise of its home rule authority, unilaterally alter or amend one of its terms. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 365; Peters v. City of Springfield (1974), 57 Ill. 2d 142, 147-49; see also Dineen v. City of Chicago (1988), 125 Ill. 2d 248, 257.) The court in City of Decatur recognized that a home rule unit could, if it chose, eliminate features of the civil service system. City of Decatur, 122 Ill. 2d at 366.

Section 33 — 53 of the ordinances of the City of Aurora (Aurora, Ill., Municipal Code §33 — 53 (Supp. Oct. 1990)) sets out the required procedures for the removal of classified civil service officers or employees of the City of Aurora and for the suspension of such officers or employees for a period of more than 30 days. The section also provides for the right to a hearing before the Commission for an employee or officer suspended for more than seven days or suspended within six months after a previous suspension.

Section 33 — 54 of the ordinances of the City of Aurora provides, in relevant part:

“Section 33 — 53 shall not apply to any officer or employee in the classified civil service whose position is covered by a labor agreement the effective date of which is subsequent to January 1, 1987, in which case an appeal of a removal, discharge or suspension shall be had solely through the grievance procedure established in the relevant labor agreement.” Aurora, Ill., Municipal Code, §33 — 54 (Supp. Oct. 1990).

By enacting sections 33 — 53 and 33 — 54, the City of Aurora has provided its own system for determining when classified civil service officers and employees are entitled to a hearing before the Commission regarding a suspension or discharge. This system specifically provides that no hearing before the Commission is required when the officer or employee is covered by a labor agreement with an effective date after January 1, 1987, which establishes a grievance procedure. That is the precise situation here. As noted, plaintiff has not advanced any argument contesting the validity of this ordinance.

We note that the City of Aurora’s system does not provide for a hearing for an officer or employee who is suspended for seven days or less and who is not covered by a labor agreement. We do not need to determine whether this limitation makes the system inadequate, however, because that question is not before us. Here, plaintiff was covered by a labor agreement which established a grievance procedure and, in fact, pursued the grievance procedure. Under the city’s ordinance, the grievance procedure was plaintiff’s sole remedy.

For the foregoing reasons, we agree that the Commission properly denied plaintiff’s request for a hearing, and we affirm the judgment of the circuit court of Kane County.

Affirmed.

BOWMAN and NICKELS, JJ., concur.