author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TORONTO BROOKS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2274
    Opinion filed August 13, 1990.

      Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Special Assistant State’s Attorney, and Inge Fryklund and Eileen Rubin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial, Toronto Brooks (defendant) was found guilty of theft and robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 16—1, 18—1). The trial court entered judgment on the robbery and sentenced defendant to 10 years in the Illinois Department of Corrections. Defendant appeals his conviction and sentence, contending that the State failed to prove him guilty of robbery beyond a reasonable doubt, that the trial court erred in sentencing him as a Class X offender under the Illinois enhanced sentencing provision (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)8)), and that the trial court improperly considered defendant’s prior convictions in aggravation to increase his sentence within the Class X felony range. Defendant also raises a further issue in his reply brief, to which the State has submitted a brief in response pursuant to this court’s order, of whether the fifth amendment’s double jeopardy clause would bar resentencing defendant as a Class X offender in the event of a remand for resentencing. For the reasons set forth below, we affirm defendant’s robbery conviction, vacate his 10-year imprisonment sentence, and remand the case to the trial court for a sentencing hearing on defendant’s Class X offender status.

At trial, Daluta Kotelon testified that on December 6, 1986, at approximately 2:30 p.m., she and her friend, Malgorzata Kurowski, were seated on a CTA bus in Chicago, each with a young child on her lap. Kotelon observed a man across the aisle, whom she later identified as defendant, move to the seat directly behind her. While her purse was on her left arm, Kotelon felt “something like someone took — not took, but opened” her purse. After checking her purse and discovering that her wallet, containing $168, was missing, she turned around and saw her wallet in the hands of defendant, who was seated directly behind her. Kotelon then demanded the return of her wallet, but defendant “just push [sic]” her left shoulder and ran away from the bus, located at that point at Damen and Chicago Avenues.

Jose Arzuaga testified that on December 6, 1986, at approximately 3:30 p.m., while he was working on his automobile in the driveway behind his house, located at 2016 West Superior Street, he noticed defendant running very fast. Defendant jumped over a guard railing, stumbled, and dropped money from a brown wallet that he was carrying. Defendant then picked up the money and tossed the brown wallet into a nearby garage. Arzuaga observed defendant’s entire face as he exchanged words with him. Defendant continued running.

Arzuaga told a police officer the direction in which defendant ran. He then joined the officer in the squad car and showed him the location of the garage. Arzuaga observed the officer return from the garage with the brown wallet he had previously observed defendant drop.

Chicago police officer Frank Higgins testified that, after receiving a radio dispatch concerning the robbery at approximately 3:30 p.m., he observed defendant walking eastbound on Erie Street, who he believed fit the offender’s description of a black male, in his 20’s, wearing a black jacket and blue jeans. Defendant, breathing hard and panting, was holding a CTA bus transfer about three blocks from the robbery scene. Higgins escorted defendant to the robbery scene. Before reaching their destination, they were met by Kotelon and Kurowski, both of whom identified defendant as the person who absconded with Kotelon’s wallet. Higgins then searched defendant and found $168 in cash in the pocket of his pants.

Following defendant’s waiver of his Miranda rights at the 13th district police station, defendant told Higgins that he had just exited the bus at Damen and Erie Streets and that he had received the $168 from his friend, Frieda Almond. After subsequently speaking with Almond, Higgins again spoke with defendant, who then stated that he had received the $168 from his mother.

Defendant did not testify at trial.

Addressing defendant’s first contention on appeal, he argues that he was not proven guilty of robbery beyond a reasonable doubt because the State failed to prove the essential element of force or the threat of imminent force by defendant in taking the property. Specifically, defendant argues that Kotelon’s testimony is insufficient because it demonstrates that no force was used in the actual removal of the wallet and that the “push” did not occur in the context of a struggle for possession of the wallet. The State, relying on People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, maintains that defendant has waived this issue by failing to make a post-trial motion. Because the issue here involves the sufficiency of the evidence, it is reviewable despite defendant’s failure to file a post-trial motion. Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1131-32.

The offense of robbery requires the “use of force” or “threatening the imminent use of force.” (Ill. Rev. Stat. 1985, ch. 38, par. 18—1.) Without such, there is no robbery, although the act may constitute a theft. (Ill. Rev. Stat. 1985, ch. 38, par. 16 —1.) In seeking to differentiate between these two offenses, our supreme court has stated that generally a simple snatching or sudden taking of property from an unsuspecting person will be insufficient force to constitute robbery, though the act may be robbery where a struggle ensues, the victim is injured in the taking, or the property is so attached to the victim’s person or clothing as to create resistance to the taking. People v. Patton (1979), 76 Ill. 2d 45, 51-52, 389 N.E.2d 1174, 1175.

Where force sufficient to constitute robbery is found from the taking of an article attached to the victim’s person or clothing, it is said that a perpetrator could not have taken the item without use of force to overcome the physical resistance created by the attachment, as distinguished from “the mere physical effort” which must occur whenever any item, not attached to the person or clothing of the owner, is transferred from the owner to the taker. (People v. Taylor (1989), 129 Ill. 2d 80, 84, 541 N.E.2d 677, 679.) Such is not the situation here. Unlike Taylor, where our supreme court found that defendant had to use force sufficient to overcome the resistance created by the attachment of a necklace to the victim’s person, the wallet here, located in a purse on the victim’s arm, was not so attached to the victim’s person as to create a resistance requiring, in order to effectuate the taking, the use of force to overcome the resistance.

Where an item is not so attached to the owner, the taker must use more than the mere physical effort of transferring an item from the owner to himself to constitute robbery. (Taylor, 129 Ill. 2d at 84, 541 N.E.2d at 679.) As the supreme court in Hall v. People (1898), 171 Ill. 540, 49 N.E. 495, explained:

“[W]here it appear[s] that the article was taken without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand of the wearer,— rather by sleight of hand and adroitness than by open violence, and without any struggle on his part, — it is merely larceny from the person.” (Hall, 171 Ill. at 542-43, 49 N.E. at 496.)

The record here does not establish, at the time of the transfer, any more than the mere physical effort of transferring the wallet from the victim’s purse to defendant’s hands, as the victim testified only that she felt an opening of her purse.

The State, though, argues sufficient force was used to constitute robbery because defendant pushed the victim to accomplish his departure. The force or threatened force need not transpire before or during the time the property is taken; the force may be used as part of a series of events constituting a single incident. (People v. Brown (1966), 76 Ill. App. 2d 362, 222 N.E.2d 227.) Thus, courts have found an offense to constitute robbery where the perpetrator defends against a challenge immediately upon the taking or where the perpetrator’s departure is accomplished by the use of force. People v. Ditto (1981), 98 Ill. App. 3d 36, 424 N.E.2d 3; People v. Houston (1986), 151 Ill. App. 3d 718, 502 N.E .2d 1174.

Defendant argues that the testimony that he pushed the victim’s left shoulder after she demanded her wallet and then ran off the bus is insufficient proof of force since there is no indication that the push occurred in the context of a physical struggle for possession of the wallet or that defendant pushed the victim to overcome her physical attempt to prevent the defendant’s departure. (Cf People v. Chambliss (1966), 69 Ill. App. 2d 459, 217 N.E .2d 422; Houston, 151 Ill. App. 3d 718, 502 N.E .2d 1174.) Defendant’s distinction, based upon the type of resistance made by the victim, is not persuasive. The victim here, after she became aware that defendant had positioned himself behind her and had reached into her purse and had taken her wallet, immediately offered verbal resistance to the taking, to which defendant responded by pushing her shoulder and then exiting the bus. We believe this force, used in a series of events involving a single incident and in response to the victim’s challenge immediately upon the taking and before defendant’s departure, is sufficient to sustain the robbery conviction under Illinois case law.

Defendant next contends that the trial court improperly sentenced him as a Class X offender because the State failed to prove that defendant’s prior offenses were committed in the sequence required under the relevant sentencing provision. Section 5—5—3(c)(8) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(c)(8)) provides for sentencing as a Class X offender under the following circumstances:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8).

At the sentencing hearing, the State informed the trial court that defendant had a prior robbery conviction in September 1984, for which he received 30 months’ probation, and another robbery conviction in June 25, 1985, for which he received 3x/2 years’ imprisonment. The trial court also had before it the presentence investigation report which indicated that defendant’s September 21, 1984, conviction had an arrest date of August 7, 1984, and his June 25, 1985, conviction had an arrest date of October 28, 1984. The State did not offer any proof as to when the prior offenses were committed to meet the statutory requirement that the second conviction be based on an offense committed after conviction on the first.

Our First District Appellate Court, on four separate occasions, has addressed similar circumstances under this sentencing provision. In People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130, People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 545 N.E.2d 942, and People v. Washington (1990), 195 Ill. App. 3d 520, 552 N.E.2d 1067, the courts held that the State failed to satisfy its burden of proving that defendant’s offense and convictions occurred either in the time period or in the sequence required by the statute where evidence was presented as to the dates of the convictions and arrests of the prior felonies, but no evidence was presented as to when the offenses were committed. The court in People v. Stewart (1989), 186 Ill. App. 3d 833, 542 N.E.2d 915, in contrast, found that the State met its burden where no evidence was presented as to the dates the prior offenses were committed. It reasoned that the trial court could infer, from circumstantial evidence, that defendant’s second felony, for which he was arrested January 25, 1982, was committed after his first felony conviction on February 3, 1981. (Stewart, 186 Ill. App. 3d at 838, 542 N.E.2d at 919.) Because we fail to see the logic in inferring merely from the dates of arrest and conviction the date the offense was committed, we follow the holdings of the majority of the courts ruling on this issue from our district.

In finding that the State did not meet its burden of proof in this regard, we reject the State’s argument that defendant has waived this claim on appeal because he failed to object at the sentencing hearing and conceded that his sentence should be determined as a Class X offender. In Pietruszynski, the court held that evidence as to when the prior offense was committed is necessary even if defense counsel does not object to the State’s lack of evidence. (Pietruszynski, 189 Ill. App. 3d at 1081, 545 N.E.2d at 949.) In Parks, the court similarly found no waiver where defense counsel stipulated to the arrest and conviction dates but did not object to the lack of evidence as to the date the offenses were committed. Parks, 168 Ill. App. 3d at 987, 523 N.E.2d at 136.

Notwithstanding the trial court’s error in sentencing defendant as a Class X offender, the State argues that defendant’s 10-year sentence should be upheld because, based upon the aggravating factors presented at the sentencing hearing, an extended term could have been imposed under section 5—8—2(a)(4) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)(4)), which has a sentence range of not less than seven years and not more than 14 years. The State’s argument is without merit because, even if a sentence imposed under a wrong sentencing range fits within a correct sentencing range, the sentence must be vacated due to the trial court’s reliance on the wrong sentencing range in imposing the sentence. See People v. Zozak (1981), 101 Ill. App. 3d 590, 428 N.E.2d 524; People v. Marquis (1977), 54 Ill. App. 3d 209, 369 N.E.2d 372.

We need not consider defendant’s second contention regarding his 10-year imprisonment sentence since defendant’s sentence must be vacated and remanded for resentencing. Defendant, however, raises a further issue in his reply brief of whether the fifth amendment’s double jeopardy clause would bar resentencing defendant as a Class X offender on remand due to the State’s failure to present sufficient evidence to qualify him as eligible for Class X sentencing in the original sentencing hearing.

Following submission of appellate briefs here, this court ordered the State to respond to this issue. In its response, the State initially urges that we find defendant to have waived this issue for raising it for the first time in a reply brief. (See People v. Spencer (1971), 131 Ill. App. 2d 551, 268 N.E.2d 192; People v. Knowles (1970), 130 Ill. App. 2d 78, 264 N.E.2d 716; see also 107 Ill. 2d R. 341(g).) Defendant, in turn, has filed a brief in response, asserting that he properly responded in his original reply brief to the State’s request for a second opportunity to prove its case under the statute and that his reply merely made his original request for a new sentencing hearing more specific by requesting that he be sentenced as a Class 2 offender on remand. In light of the above circumstances, the State’s adequate opportunity to respond to the issue, and the fact that the issues involve substantial constitutional rights, as well as the sufficiency of the evidence, we will consider defendant’s claim.

Recently, two Illinois appellate courts have reached opposite conclusions on the issue of whether the double jeopardy clause bars resentencing under section 5—5—3(c)(8) of the Code where the State failed to prove the dates the prior offenses were committed. People v. Washington (1990), 195 Ill. App. 3d 520, 522 N.E.2d 1067, held that double jeopardy did not bar resentencing as a Class X offender under the Illinois enhanced sentencing provision. People v. Hamilton (1990), 198 Ill. App. 3d 108, held that it did so bar.

The protection afforded by the double jeopardy guaranty of the fifth amendment in issue here is that against a second prosecution for the same offense after acquittal. In applying this aspect of double jeopardy to the case at bar, our analysis involves two separate inquiries: first, whether the reversal here falls within the category of reversals of convictions on appeal found to invoke this aspect of double jeopardy; and, second, whether this aspect of double jeopardy attaches to the Illinois sentencing procedure for noncapital offenders who qualify for an enhanced sentence under section 5 — 5—3(c)(8) of the Code.

As to the former inquiry, it is established that the double jeopardy clause operates to prohibit the retrying of a defendant who overturns his conviction on appeal on the ground of insufficient evidence, unlike where the reversal is based upon a trial error in the proceedings leading to the conviction. (Lockhart v. Nelson (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285; Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141.) No question exists that the reversal here involves the sufficiency of the evidence, as the State failed to meet its statutory burden of proof. The more difficult inquiry — and the one upon which the Illinois appellate courts are in disagreement — is whether this aspect of double jeopardy attaches to the Illinois enhanced sentencing procedure.

The United States Supreme Court has held that the double jeopardy clause, with regard to resentencing following a defendant’s successful attempt to set aside his original conviction, imposes no prohibition against imposition of harsher sentences after a retrial. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) In United States v. DiFrancesco (1980), 449 U.S. 117, 133, 66 L. Ed. 2d 328, 343, 101 S. Ct. 426, 435, the Court, in rejecting the argument that the imposition of a sentence was an implied acquittal of a greater sentence, explained that “[historically, the pronouncement of sentence has never carried the finality that attaches to an acquittal.” In Bullington v. Missouri (1981), 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852, however, a divided Court held, under Missouri’s bifurcated capital-sentencing procedure, that a State could not seek the death penalty on a retrial where the original jury had determined defendant should be sentenced to life imprisonment rather than death. It noted that, unlike the previous sentencing procedures to which it held double jeopardy did not attach, the proceeding in issue “resembled *** the immediately preceding trial on the issue of guilt or innocence” and had “all the hallmarks of the trial on the issue of guilt or innocence.” Bullington, 451 U.S. at 438-39, 68 L. Ed. 2d at 278-79,101 S. Ct. at 1858.

The Supreme Court has not ruled on whether Bullington applies outside the context of capital cases to enhanced sentencing cases. Several Federal circuit courts, however, have addressed the issue and are in disagreement in this regard. Compare Bullard v. Estelle (5th Cir. 1982), 665 F.2d 1347; Nelson v. Lockhart (8th Cir. 1987), 828 F.2d 446, rev ’d on other grounds (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285 (double jeopardy applies to State habitual offender statutes), with Linam v. Griffin (10th Cir. 1982), 685 E2d 369; Denton v. Duckworth (7th Cir. 1989), 873 F.2d 144 (dictum) (double jeopardy does not apply to State habitual offender statutes).

The two Illinois courts which have reached the double jeopardy issue under the Illinois enhanced sentencing provision offer us little guidance on this issue. Washington did not expressly address the issue; and, while Hamilton noted that the Supreme Court has not decided whether Bullington applies outside the capital context, it concluded, without further analysis, that “it is clear, given the Court’s decision in Bullington, that the double jeopardy clause applies to the [enhanced sentencing procedure]” (Hamilton, 198 Ill. App. 3d at 112).

After reviewing the reasoning of the Federal circuit courts regarding the applicability of Bullington outside the capital context, we find the reasoning in Linam and Denton to be the more persuasive. In Linam, the Tenth Circuit found that Bullington’s concept of an acquittal of a potential death penalty to be inapplicable to New Mexico’s bifurcated habitual criminal proceedings. (Linam, 685 F.2d at 376.) The Court reasoned:

“The habitual criminal status is not a conviction of a distinct crime. Indeed, a conviction on the merits has occurred and the crime convicted of is unrelated to the Habitual Criminal Act which produces not a judgment of guilt of the offense, but rather an enhanced sentence. [Citations.]
* * *
The proceedings in Bullington included a consideration by the jury of the facts bearing on guilt or innocence. This aspect serves to differentiate a case like the present one in which the increased sentence has nothing to do with the basic cause being tried. * * * The death penalty is a part of the offense of murder. This uniqueness of the death penalty unquestionably serves to distinguish DiFrancesco from Bullington.” (Linam, 685 F.2d at 375.)

Similar reasoning was adopted by the Seventh Circuit, in dictum, from the Indiana Supreme Court on reviewing Indiana’s habitual offender proceeding:

“ ‘The death penalty is the most extreme penalty authorized by law and for that reason alone warrants unique treatment. It can only be applied within the specific facts of a particular case. The habitual offender status, however, is a continuing status of a particular defendant as long as he has two or more felony convictions on his record. The state may use this status any time the defendant commits a further crime and a jury’s determination that a defendant is not a habitual offender during a particular trial is not an “acquittal” of that defendant’s status as a habitual offender.’ [Citation.]
*** [The death penalty proceeding in Bullington] ‘involved a consideration of the particular facts underlying the substantive offense ***. Because the habitual offender statute does not create new or separate offenses and the habitual offender proceeding does not deal with the underlying facts on the substantive charge, the use of prior convictions at more than one habitual offender proceeding does not constitute double jeopardy.’ [Citations.]” (Denton, 873 F.2d at 147, quoting Durham v. State (Ind. 1984), 464 N.E.2d 321, 324, 325.)

We likewise conclude that Bullington does not apply to the Illinois enhanced sentencing proceeding, which does not involve the unique capital context or the underlying facts of the substantive charge, but involves defendant’s continuing status as a habitual offender.

As an alternative basis for our ruling, we agree with the State’s argument that, even if Bullington applied outside the unique capital context, the Illinois enhanced sentencing procedure for noncapital offenders who qualify under section 5—5—3(c)(8) of the Code is not the type of “mini-trial” present in Bullington which bears “the hallmarks of [a] trial on guilt or innocence.”

Under the Missouri bifurcated sentencing procedure in Bullington, the hearing is held before the same jury that found defendant guilty, the prosecution is required to prove beyond a reasonable doubt the existence of additional facts consisting of statutorily defined aggravating circumstances, and the jury has two sentencing alternatives, death or life imprisonment. The jury is instructed that it is not compelled to impose the death penalty even if aggravating circumstances are found to exist, and the jury is required to make specific, unanimous factual findings of the aggravating circumstances found to exist. Many procedural safeguards are also afforded the defendant, including the right to be notified before trial of the aggravating evidence to be offered, the right to counsel, the right to confront witnesses, and the right to present favorable evidence.

The Illinois procedure for enhanced sentencing under section 5— 5 — 3(c)(8) of the Code, on the other hand, requires that the State prove that defendant has committed two prior offenses in a certain sequence for which he has received Class 1 or Class 2 felony convictions. Although the statute does not address the quantum of evidence required to prove the prior convictions and sequence of the offenses, Illinois courts have required proof beyond a reasonable doubt. (See Pietruszynski, 189 Ill. App. 3d at 1079, 545 N.E.2d at 948; Hamilton, 198 Ill. App. 3d at 113; People v. Harris (1987), 157 Ill. App. 3d 70, 74, 510 N.E.2d 107, citing People v. Casey (1948), 399 Ill. 374, 378-80.) Once the above is proven, the statute provides that a defendant’s sentence “shall” be elevated to a Class X offender. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3(c)(8).) The trial court then has discretion to sentence the defendant, as a Class X offender, to a nonprobationary term of not less than six years and not more than 30 years. Ill. Rev. Stat. 1985, ch. 38, pars. 1005-5-3(c)(2), 1005-8-1(a)(3).

The sentencing proceedings for Class X offenders under section 5—5—3(c)(8), as well as for most other noncapital offenders, are conducted pursuant to section 5—4—1 of the Code. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—1.) Pursuant to this section, the trial court before which the hearing is held considers evidence in aggravation and mitigation, any presentence reports, and arguments as to sentencing alternatives and provides the defendant the opportunity to make a statement and the victim of a violent crime the opportunity to give an impact statement. Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—1.

The Illinois enhanced sentencing procedure was found by the court in Washington to be distinguishable from the type of “mini-trial” present in Bullington. The court emphasized that the proceeding consisted merely of a presentation of the presentence report, arguments by counsel, and a statement by the defendant, and that no witnesses were called to testify and no formal introduction of evidence was presented. (Washington, 195 Ill. App. 3d at 531, 552 N.E.2d at 1074.) The court in Hamilton, on the other hand, in finding the Illinois procedure to be similar to that in Bullington, emphasized that, like the procedural factors found important in Bullington, the Illinois procedure required the trial court to determine whether the State proved its case beyond a reasonable doubt and, where the State met its burden, the statute took away some of the trial court’s normal sentencing discretion by requiring defendant be sentenced as a Class X offender. Hamilton, 198 Ill. App. 3d at 113.

Defendant here also argues that it is the use of the reasonable doubt standard at sentencing that calls double jeopardy into play in the Illinois sentencing procedure. We believe this oversimplifies the holding in Bullington.

Bullington noted many significant differences in the Missouri case from the sentencing cases the Court previously found not to invoke double jeopardy concerns. It noted the fact that the Missouri jury was presented with only two sentencing alternatives instead of the usual unbounded discretion to select an appropriate sentence. It further noted that the prosecution was required to prove additional facts and that the jury was given standards to guide its determination, as opposed to normal sentencing situations where the sentence is determined in large part on the basis of information, such as the presentence report, developed outside the courtroom and where the sentence is “ ‘purely a judicial determination, [where much of what] goes into it is the result of inquiry that is nonadversary in nature.’ ” Bullington, 451 U.S. at 444, 68 L. Ed. 2d at 282, 101 S. Ct. at 1861, quoting DiFrancesco, 449 U.S. at 136-37, 66 L. Ed. 2d at 345-46, 101 S. Ct. at 437.

The sentencing court’s discretion, the nonadversarial nature of the additional factual proof, and the procedural aspects of the Illinois enhanced sentencing hearing are distinguishable from the proceeding in Bullington. First, the sentencer’s choice in the actual punishment to be imposed is far broader in the instant case than that in Bullington. While the jury had only two sentencing alternatives upon considering the additional proof in Bullington, the additional proof in the Illinois procedure merely elevates the sentencing range; the trial court still retains, in sentencing defendant within the 6- to 30-year range, the usual broad discretion afforded to a sentencing court.

Next, while the fact finder here and in Bullington both are guided by the “beyond a reasonable doubt standard,” their evaluations under that standard are markedly different. The nature of the additional proof in Bullington necessarily required a trial-type adversarial inquiry, where the prosecutor must convince the fact finder of its view of the evidence. The additional proof required in the Illinois procedure, in contrast, is more similar to the nonadversarial judicial determination made in normal sentencing situations. In Bullington, an adversarial inquiry necessarily would arise where the jury is required to determine whether any aggravating circumstances exist, whether the circumstances are sufficient to warrant imposition of the death penalty, and whether any mitigating factors outweigh the aggravating circumstances and where the jury is instructed that it is not compelled to impose the death penalty even if convinced of all of the above. Such an adversarial inquiry is not invoked in the Illinois procedure, where the additional proof consists of defendant’s prior criminal record or criminal status and where the sentencing court is required, upon proof of this status, to elevate the sentence.

Finally, the Illinois sentencing hearing does not have the same trial-type procedures present in Bullington, but more closely resembles the usual sentencing proceedings. Defendant is not entitled to a jury; the sentencing is informal; and the court considers arguments of the parties and informational-type evidence, such as presentence reports.

In allowing the State a second opportunity to prove defendant’s Class X offender status under the Illinois procedure, our decision does not oppose the values which underlie the double jeopardy clause’s prohibition against retrial after acquittal:

“ ‘The underlying idea *** is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ ” (Bullington, 451 U.S. at 445, 68 L. Ed. 2d at 283, 101 S. Ct. at 1861, quoting Green v. United States (1957), 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223-24.)

For the reasons previously discussed, resentencing defendant as a Class X offender will not subject defendant, to the embarrassment, ordeal and anxiety normally attributed to a trial on the issue of guilt or innocence; nor will it increase the possibility that defendant may be incorrectly adjudged a Class X offender.

In summary, we affirm defendant’s robbery conviction, rejecting defendant’s contention that insufficient evidence was adduced to establish the element of force to sustain the conviction. We vacate defendant’s sentence as a Class X offender due to the State’s failure to present any evidence of the dates upon which defendant’s prior offenses were committed to meet its statutory burden of proof. We remand this case to the circuit court for a sentencing hearing on defendant’s status as a Class X offender, rejecting defendant’s contention that the double jeopardy clause bars resentencing him as a Class X offender.

Affirmed in part; vacated in part and remanded.

O’CONNOR and MANNING, JJ., concur

       While this court in Pietruszynski (189 Ill. App. 3d 1071, 545 N.E.2d 942), and the court in Parks (168 Ill. App. 3d 978, 523 N.E.2d 130), also found the State did not meet its burden of proving the requirements of section 5—5—3(cX8) of the Code, the parties did not raise the issue of whether the double jeopardy clause would bar resentencing under this provision on remand.

      The Supreme Court has held in a case involving a habitual criminal statute that resentencing would not be barred by the double jeopardy clause because the reversal involved a “trial error” instead of the sufficiency of the evidence (Lockhart v. Nelson (1988), 488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285), but it did not reach the Bullington issue. The Court stated that because the State conceded the issue on appeal, it was not deciding whether the double jeopardy clause applied to the noncapital case but would assume that the issue would present no barrier to reaching the claim raised there. (Lockhart, 488 U.S. at 37-38 n.6, 102 L. Ed. 2d at 271 n.6, 109 S. Ct. at 289 n.6.) The State here directs us to United States v. Verdugo-Urquidez (1990), 494 U.S. 259, 272, 108 L. Ed. 2d 222, 237, 110 S. Ct. 1056, 1064-65, where the Supreme Court noted: “The Court often grants certiorari to decide particular legal issues while assuming without deciding the validity of antecedent propositions, [citations] and such assumptions — even on jurisdictional issues — are not binding in future cases that directly raise the questions.”

      Subsequent to the Seventh Circuit’s decision in Denton, the Indiana Supreme Court, in Perkins v. State (1989), 542 N.E.2d 549, reconsidered its holding in Durham apparently on the mistaken belief that the United States Supreme Court in Lockhart (488 U.S. 33, 102 L. Ed. 2d 265, 109 S. Ct. 285) had ruled that the double jeopardy clause would attach to habitual sentencing proceedings. As discussed in the preceding footnote, Lockhart ruled only that double jeopardy would not bar resentencing there because the reversal involved a trial error rather than the sufficiency of the evidence; it did not decide the attachment issue. Thus, we find the Seventh Circuit’s agreement with the reasoning set forth in Durham to be persuasive.

      We note that the State, at oral argument, has disputed the case law requiring proof beyond a reasonable doubt. Because this issue is not determinative of our holding, we will not address this argument.

        DiFrancesco is the only other sentencing case before the Court in which the prosecution had the burden to prove additional factual proof similar to the trial-type proof in Bullington. Bullington distinguished the sentencing procedure in DiFrancesco based upon the difference in the quantum of evidence required and the fact that the second proceeding in DiFrancesco involved the appellate review of a sentence on the record of the sentencing court, “not a de novo proceeding that gives the Government the opportunity to convince a second factfinder of its view of the facts.” (Emphasis added.) (Bullington, 451 U.S. at 440, 68 L. Ed. 2d at 280, 101 S. Ct. at 1859.) The Court’s distinction demonstrates that it is the State’s second opportunity to present trial-type proof before a second fact finder which brings double jeopardy into play.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. ROBERT DICKERSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—0522
    Opinion filed August 13, 1990.

      ■ Cook County Legal Assistance Foundation, Inc., of Harvey (Eugene C. Edwards, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE MANNING

delivered the opinion of the court;

The appellant, Robert Dickerson, appeals from the final order of the circuit court of Cook County which: (1) vacated a prior order quashing service of process on the appellant; (2) reinstated the ex parte default judgment entered against the appellant; and (3) granted attorney fees to the appellee, Prudential Property and Casualty Company (Prudential) in the amount of $500, pursuant to section 2—611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611).

On appeal, Prudential has failed to submit a written brief. However, the record below and claimed errors on appeal are relatively simple. The issues presented for review are: (1) whether the newly discovered evidence before the trial court justified vacatur of its order quashing service of process and reinstatement of the default judgment, and (2) whether the trial court abused its discretion in granting Prudential attorney fees. Thus, this appeal is taken and considered on the record and the appellant’s brief only. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.) We reverse. Our reasons follow.

On August 27, 1984, Prudential filed suit against the appellant and Early Roberts as a result of an automobile accident. Appellant was served a copy of the complaint and summons by substitute service on a black female, age 28, at 15020 Morgan Street, Harvey, Illinois. The sheriffs return indicated that the woman served was the appellant’s wife.

Appellant failed to file an appearance, and an ex parte default judgment was entered against him on October 31, 1984. Thereafter, appellant appeared pro se in court on May 2, 1985, pursuant to a citation to discover assets. The record reveals that the appellant indicated at that time that he was unemployed and had no permanent address. However, he received mail at the Harvey address, which was his brother’s residence.

On August 14, 1986, appellant filed a motion to quash service of process and an affidavit in support thereof. In the affidavit, appellant denied receiving a copy of the summons and complaint. He averred that he did not reside at 15020 Morgan, Harvey, Hlinois; rather, he resided at 8156 Drexel in Chicago, Illinois. He further averred that no member of his household at the Chicago address was served with a copy of the summons and complaint. During the hearing on the motion to quash which was held on September 23, 1986, appellant testified that he was not married. Although Prudential filed a reply to the motion, they did not produce any affidavits or testimony to rebut the assertions and denials made by the appellant.

On October 16, 1986, the court issued a written order finding that Prudential had not met its burden to sustain the validity of the substituted service of process. The trial court quashed service of process and ordered the default judgment to be vacated and set aside.

Approximately one week later, on October 22, 1986, Prudential filed a motion seeking attorney fees against the appellant. Prudential alleged that the appellant had lied about his residence and marital status. Attached to this motion was a job application dated November 1985 which listed 15020 Morgan, Harvey, Illinois, as the appellant’s address and a woman and four children as his dependents. On November 18, 1986, the court granted Prudential leave to file a motion to reconsider. The court also entered the motion for attorney fees and continued all matters until December 23,1986.

Thereafter, Prudential filed its motion for reconsideration and attached the “employment application” as its exhibit and “new evidence.” Although the hearing on this motion was scheduled for December 23, 1986, the transcript of the proceedings is not a part of the record on appeal. However, the record does reflect that an order was entered on that date which vacated the court’s order of October 16, 1986, reinstated the default judgment and awarded attorney fees against the appellant. It is from this order that appellant appeals.

Appellant first maintains that the trial court’s order which granted his motion to quash service of process and vacated the ex parte judgment against him was proper. He asserts as error the court’s vacatur of this order and reinstatement of the prior orders. We agree. Methods of service of process are set forth in section 2— 203(a) of the Illinois Code of Civil Procedure, and provides in relevant part:

“Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy thereof with the defendant personally or (2) by leaving a copy at the defendant’s usual place of abode, with some person of the family, of the age of 13 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.” Ill. Rev. Stat. 1985, ch. 110, par. 2—203(a).

Personal or substitute service on a defendant is required to submit the defendant to the jurisdiction of the court. In the situation where the sheriff’s return indicates personal service upon the defendant, there is a presumption of validity. Conversely, in the case of substitute service, there is no presumption of validity of the sheriff’s return. (Sterne v. Forrest (1986), 145 Ill. App. 3d 268, 274, 495 N.E.2d 1304.) Where a party challenging the substitute service attacks the sheriff’s return with affidavits, and no counteraffidavits are filed, the affidavits, if otherwise sufficient, must be taken as true absent testimony by the deputy, and the purported service of process quashed. Four Lakes Management & Development Co. v. Brown (1984), 129 Ill. App. 3d 680, 684, 472 N.E.2d 1199.

Moreover, where the party against whom an ex parte order of default was entered appears in court and asserts that the judgment was procured without proper service of process, the judgment remains void and is subject to vacatur. (See First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 393 N.E.2d 574.) In the present case, service of process was had upon the appellant by substitute service, and an ex parte order of default was entered against him. Thereafter, appellant properly challenged the jurisdiction of the court and the order of default by filing a special and limited appearance (Ill. Rev. Stat. 1985, ch. 110, par. 2—301), and a motion to quash service of process which was supported by affidavit.

In the affidavit, the appellant denied that he resided at the address where the service was made and averred that at the time of the alleged service, he resided at 8156 South Drexel Avenue, in Chicago, Illinois. Thus, the appellant placed the validity of the substituted service in issue through his affidavit. Where such an affidavit stands unrebutted or uncontradicted, as here, it serves as a proper basis for quashing service of process. (See Nibco, Inc. v. Johnson (1983), 98 Ill. 2d 166, 456 N.E.2d 120. See also Ill. Rev. Stat. 1983, ch. 110, par. 2— 203(a).) Further, where there is no service of process, any judgment which was entered based upon the purported process becomes void because it was entered without the proper jurisdiction over the defendant and may be vacated at any time. Giralamo v. O’Connell (1986), 145 Ill. App. 3d 527, 529, 495 N.E.2d 1180.

Accordingly, we find that the trial court’s order, dated October 16, 1986, was proper based upon the evidence before the court which consisted solely of appellant’s uncontradicted affidavit. We now turn our attention to the issue as to whether or not the trial court’s subsequent vacatur of this order was proper.

The trial court’s vacatur of its order which quashed service of process and reinstated the default judgment was entered on Prudential’s motion for reconsideration. The gist of Prudential’s motion was that it had obtained newly discovered evidence subsequent to the court hearing. This evidence consisted entirely of a Sears and Roebuck job application, purportedly executed by the appellant in November 1985. The record reflects that the application was signed by “Mr. Robert Dickerson.” Therein, he listed his marital status as married, listed the name and birthdate of his wife and the names and birthdates of his four children. He also listed his home address as 15020 Morgan, Harvey, Illinois.

A determination whether newly discovered evidence warrants a new trial or hearing is a matter within the trial court’s discretion. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 775, 467 N.E.2d 962.) To justify setting aside a prior order based on newly discovered evidence, the party seeking to overturn the order must establish that: (1) the evidence was discovered subsequent to the judgment which the party seeks to have overturned; (2) due diligence was used to discover the evidence prior to the hearing or trial; (3) the evidence is material; and (4) the evidence is more than merely cumulative. (Jenkins v. Dearborn Securities Corp. (1976), 42 Ill. App. 3d 20, 23-24, 355 N.E.2d 341.) The newly discovered evidence which warrants the granting of a new trial (or hearing) must be of such a conclusive or decisive nature and be sufficiently important to make it probable that a different verdict or order would be returned in another trial (or hearing). Bianchi v. Board of Fire & Police Commissioners (1976), 41 Ill. App. 3d 998, 999, 354 N.E.2d 916.

Applying the applicable factors to the case at bar, we hold that the trial court’s decision to allow the newly discovered evidence as to the basis to overturn its previous order constitutes an abuse of the court’s discretion and was improper under the circumstances. We need not address the applicability of the factors concerning whether the evidence was discovered subsequent to the court order, and whether due diligence was used to discover the evidence prior to the hearing, because we believe that the evidence was little more than cumulative and impeaching.

We believe that the evidence which consisted solely of a job application, without more, was insufficient to warrant the court’s reinstatement of previous orders. By vacating the October 16, 1986, order, the trial court determined that the evidence before it, i.e., the job application, was of such a conclusive nature that a different result would be returned during a new hearing on a motion to quash service and to vacate the default judgment. Such a finding is erroneous. First, while the job application suggests that the appellant may have lived at the address at some point in time and may have been married or else has a propensity to fabricate, such matters go to impeaching his credibility. Newly discovered evidence which does little more than impeach the credibility of the witness does not warrant the granting of a new trial.

Second, and of great concern to us, is the fact that the newly discovered evidence was used as the grounds to sustain the validity of the substituted service of process. This evidence was unsubstantiated, uncorroborated and unverified. There is some indication in the record and in appellant’s brief that he admitted to the court that he had completed the application in this manner in order to secure employment. However, as noted above, it is well settled in Illinois that in the case of substituted service of process, there is no presumption of validity, and where such process is challenged by affidavit, the affidavit must be taken as true absent counteraffidavits or testimony by the deputy. In the case at bar, Prudential failed to present any counteraffidavits or testimony during the hearing on the motion to quash. Neither did it do so when it presented the newly discovered evidence. We conclude that notwithstanding the job application, the appellant’s affidavit and testimony that he was not married and did not reside at the address at the time of the substituted service remained uncontroverted. Accordingly, we further conclude that Prudential, having failed to meet its burden to sustain the validity of the substituted service with the introduction of the newly discovered evidence, the trial court abused its discretion in allowing and using such evidence as the grounds to vacate the order which quashed service of process and reinstate the default judgment. On the facts here presented, we believe that the newly discovered evidence did not warrant setting aside the court’s prior order. We hold that the trial court’s December 23, 1986, order was entered in error and is hereby reversed.

Having found that the trial court abused its discretion by allowing the newly discovered evidence, we also find that it abused its discretion in granting Prudential attorney fees.

Section 2 — 611 of the Illinois Code of Civil Procedure, which provides for attorney fees and costs to be paid by the party opponent, provides in relevant part:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, *** that to the best of his knowledge, information and belief *** it is well grounded in fact ***. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred, *** including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

Bayles v. Bennett (1974), 22 Ill. App. 3d 144, 316 N.E.2d 792.

The decision to award such fees, as well as the amount, is within the sound discretion of the trial court. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 448 N.E.2d 905.) Absent an abuse of discretion, a reviewing court will not disturb the trial court’s award of attorney fees pursuant to section 2—611. In re Application of Cook County Collector (1986), 144 Ill. App. 3d 604, 494 N.E.2d 536.

Generally, the trial court must conduct a section 2—611 hearing to determine whether an untrue statement was made without reasonable cause. (See Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 431 N.E.2d 1364.) As previously noted, and on the factual matrix here presented, we believe that the trial court lacked sufficient information to determine whether the appellant had made an untrue statement on the basis of the job application alone. Moreover, because the trial court did not conduct a hearing to determine whether untrue statements had been made, we conclude that the trial court abused its discretion and improperly entered sanctions against the appellant. Accordingly, the court’s award of attorney fees to Prudential is reversed.

For the reasons above stated, the judgment of the circuit court is reversed.

Reversed.

CAMPBELL and O’CONNOR, JJ., concur

      The transcript of the court proceedings of September 23, 1986, is not a part of the record on appeal. However, references thereto are made in the trial court’s written order of October 16, 1986, in later pleadings before the trial court, and in the appellant’s written brief on appeal.


author: JUSTICE BILANDIC

text:
    LEASE MANAGEMENT CORPORATION et al., Plaintiffs-Appellants, v. G.I.C. FINANCIAL SERVICES, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—2611
    Opinion filed August 14, 1990.

      Ronald Butler, Robert N. Hermes, and Ellen M. Babbitt, all of Butler, Rubin, Newcomer, Saltarelli & Boyd, of Chicago, for appellants.
    Stephen J. Senderowitz, Susan Bogart, and Sidney J. Lee, all of Becker & Tenenbaum, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiffs, two affiliated companies, Lease Management Corporation and Lease Management Equipment Corporation (hereinafter jointly LMC), filed this suit against defendant, G.I.C. Financial Services Corporation (hereinafter GIC), alleging that GIC breached its contract with LMC and breached its duty of good faith and fair dealing. The trial court entered summary judgment in defendant’s favor.

On appeal, LMC contends that: (1) the trial court’s ruling was based upon a fundamental misconception of the contract and resulted in an erroneous grant of summary judgment; and (2) there were unresolved genuine issues of fact about whether GIC breached its duty of good faith and fair dealing.

Both parties to this litigation are engaged in an aspect of financial services to industry. A brief background into the nature of their respective roles in commercial transactions will place the dispute before this court in better focus.

LMC provides specialized professional financial services to the heavy equipment industries. LMC initially identifies all parties interested in a lease and packages the transaction. It will also administer the transaction before, during and after the original lease, and will aid the original purchaser/lessor in negotiating a favorable substitute lease upon the termination of the original lease (remarketing).

Defendant GIC purchased and then leased heavy equipment to various companies throughout the country. GIC would either negotiate the leases directly with the lessees or would enter into deals brought to it by independent brokers such as LMC. The independent brokers were paid a broker’s fee when the transaction closed. Occasionally, GIC would also enter into a separate remarketing contract with the independent broker. Under these remarketing contracts, the broker would receive a fee, under certain circumstances, if the equipment subject to the original lease was remarketed.

The case at hand originated in 1981, when LMC presented GIC with a deal involving the leasing of 11 large ore-hauling trucks to Chino Mines Co. for use in its mining operations outside of Harley, New Mexico. GIC, through its wholly owned subsidiary G.I.C. Leasing Services, accepted the deal and purchased the trucks. In late March 1981, GIC leased the trucks to Chino Mines Co. for a term of eight years ending on July 1, 1989 (Chino lease). LMC was paid a broker’s commission in excess of $250,000 for arranging the lease. Since these transactions are generally highly leveraged, GIC uses the rent proceeds to repay the loan it obtained to purchase the trucks, meet its operating expenses, and make a profit. The original lease of the trucks to Chino is not in dispute because LMC was paid for its services by GIC.

At the end of the eight-year term, GIC will still own the trucks but will not have a lessee. Therefore, it is interested in getting another lessee when the lease expires. This keeps cash flowing to GIC and avoids the cost of storage, insurance and other expenses incident to trucks it owns but does not lease.

The remarketing agreement at issue was designed to provide uninterrupted cash flow to GIC and an opportunity for LMC to earn an additional fee for its remarketing services. On April 1, 1981, GIC and LMC entered into the “Remarketing Compensation Agreement” dealing with the trucks leased to Chino. The agreement was jointly drafted by the parties and was reviewed and revised by outside counsel jointly representing both LMC and GIC. The agreement sets forth specific circumstances in which LMC can collect a fee.

On April 29, 1986 (approximately three years prior to the expiration of the Chino lease), GIC notified LMC, by letter, of its intention to assign the Chino lease and sell the underlying trucks. This type of transaction is known as a “mid-term sale/assignment” because it is the sale of the underlying equipment and an assignment of the accompanying lease during the term of the lease and has no effect upon the terms or the expiration date of the lease. GIC invited LMC “to participate in this remarketing activity.”

LMC tendered two purchase bids. GIC rejected them because they were lower than the bids received from other parties. GIC also informed LMC that GIC believed that the mid-term transaction would relieve GIC of any further obligations under the agreement and would effectively terminate the agreement. LMC took exception to this interpretation and demanded that GIC either assign the agreement as part of the mid-term transaction, or commit itself to continuing its responsibility under the agreement. GIC refused to do so.

On October 13, 1986, GIC, through its wholly owned subsidiary, sold the trucks and assigned the Chino lease to Heller Financial, Inc. (Heller). LMC did not render any assistance in connection with this sale and assignment. There was no assignment of the remarketing agreement to Heller.

This suit was filed in late 1986. LMC’s first amended complaint sought a declaratory judgment setting forth the rights and obligations of the parties to the agreement and declaring that GIC continues to be bound by the remarketing agreement. It alleges that GIC breached the agreement by either failing to honor its “continuing commitment” to pay remarketing fees or by failing to assign and transfer the agreement to Heller. The complaint also alleged that GIC breached its duty of good faith and fair dealing.

GIC moved for summary judgment on the grounds that: (1) under the express terms of the agreement, GIC had no obligation to assign the agreement to Heller; (2) under the terms of the agreement, GIC had no obligation to pay LMC a remarketing fee for the mid-term transaction; and (3) GIC acted in accordance with the terms of the agreement and acted in good faith and with respect for LMC’s rights. LMC replied that: (1) GIC’s obligations survived the mid-term transaction; (2) GIC’s conduct constituted anticipatory breach of the agreement; and (3) GIC breached its duty of good faith and fair dealing. The trial court granted summary judgment, holding that the agreement was an unambiguous integrated contract. The court found that the parties chose not to include mid-term transactions in the agreement. LMC appeals.

I

First, LMC contends that the trial court had a fundamental misconception of the disputed agreement which led to the erroneous grant of summary judgment in favor of GIC. The agreement is designated “Remarketing Compensation Agreement.” The trial court found that the agreement listed “all of the possible eventualities” which would require the payment of a commission by GIC to LMC. Significantly, a “mid-term sale/assignment” is not one of the transactions which would be compensable to LMC under the facts of this case.

A contract is ambiguous where the contract, as written, is susceptible to more than one meaning. (Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 1016, 452 N.E.2d 667, aff’d (1984), 103 Ill. 2d 290.) A contract is not ambiguous merely because the parties disagree about its meaning. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 593, 527 N.E.2d 897, appeal denied (1988), 123 Ill. 2d 566.) In the case sub judice, the trial court correctly determined that the agreement was clear and unambiguous. It correctly recognized that LMC wanted the court to create a contractual provision which the parties themselves did not include in the agreement. LMC did not cite any legal authority requiring the trial court to add the missing provision for the benefit of LMC.

Under the terms of the agreement, LMC was “engaged on a non-exclusive basis by GIC for the purpose of remarketing the Equipment.” GIC agreed to “give LMC written notice” when any of the equipment became “available for purchase” prior to the expiration of the initial eight-year term of the Chino lease. GIC agreed that it would not sell the equipment until the expiration of 30 days after giving LMC written notice. The sale must be in an “arms’ length transaction.” The engagement of LMC “shall not be deemed to prohibit GIC *** from engaging in the remarketing effort to further assure the obtaining of the most favorable offers for the Equipment.”

Conspicuously missing is any provision requiring the assignment of the remarketing agreement to the third-party purchaser at a “midterm sale/assignment” of the equipment. It is undisputed that GIC gave proper notice of the proposed sale to Heller. It is also undisputed that LMC made two separate bids to purchase the equipment and that both bids were lower than the price offered by Heller. It is also undisputed that the sale to Heller was an “arms’ length transaction.” GIC merely exercised its right to obtain the “most favorable” price for its equipment.

Although the original eight-year Chino lease had a few years to go before its expiration, the equipment has a new owner and Chino has a new lessor. LMC had the opportunity to be the new owner and lessor, but it could not meet the price. The trial court correctly found that LMC wanted the court to write a provision into the remarketing agreement which the parties themselves did not do. The trial court properly refused to do so. See Ebrahim v. Checker Taxi Co. (1984), 128 Ill. App. 3d 906, 471 N.E.2d 632.

We therefore conclude that the trial court correctly found that the agreement was not ambiguous and that GIC was entitled to summary judgment under the terms of the agreement and the facts of this case. Summary judgment is an appropriate remedy for resolving disputes arising out of unambiguous contracts. Metalex Corp. v. Uniden Corp. of America (7th Cir. 1988), 863 E2d 1331,1333.

II

LMC contends that there is a genuine issue of material fact as to whether GIC breached its implied duty of good faith and fair dealing and, for that reason, the trial court erroneously entered summary judgment in favor of GIC. We disagree.

When GIC contemplated the sale of the trucks and assignment of the Chino lease to Heller, GIC notified LMC and extended an opportunity to LMC to meet or exceed other offers. LMC did, in fact, submit two bids which were lower than Heller’s. GIC demonstrated good faith and fair dealing by withholding the sale to Heller until LMC submitted its bids.

LMC also contends that the sale to Heller without conditioning the sale on Heller’s assumption of the remarketing agreement between LMC and GIC constitutes bad faith. What LMC overlooks is the fact that the remarketing agreement did not obligate Heller to assume the contract nor GIC to continue to be responsible to LMC after the sale of the trucks.

We therefore conclude that the grant of summary judgment in favor of GIC was correct.

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

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. D.B., a Minor, Respondent-Appellee.
    First District (2nd Division)
    No. 1—88—3321
    Opinion filed August 14, 1990.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Eileen Rubin, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

The State appeals from an order of the circuit court denying the State’s petition to permit the prosecution of respondent D.B., a 14-year-old minor, for the offenses of murder, home invasion and residential burglary. This appeal presents two issues for our review: (1) whether the trial judge abused his discretion as delimited by sections 5—4 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 805 —4(3)(a)) when he declined to permit respondent to be tried as an adult offender; and (2) whether he precluded a meaningful review of his decision by failing to preserve his reasoning with sufficient particularity. We affirm.

On October 4, 1988, at about 1:30 p.m., respondent and two friends, Owen Parker (Owen), 15, and Patrick Brown (Patrick), 16, used a crowbar to break into the apartment of Allie Larkin, an elderly woman in her eighties, to rob her of her money. While they were searching her bedroom, Ms. Larkin returned inside from the front porch. The three boys lay in wait for her in the bathroom. As she passed by the door, Patrick hit her over the head with the crowbar, and she fell down. Respondent and Owen resumed their search. When she tried to get up, Patrick hit her again and held her down with his foot. Finally, holding the crowbar with both hands, he struck her harder over the head. Without having found any money, the three boys escaped out the bedroom window. Ms. Larkin died later that day.

The State brought charges against Patrick, Owen and the respondent for first degree murder, home invasion and residential burglary. Because of their ages, Patrick and Owen were automatically transferred to adult criminal court pursuant to section 5—4(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805—4(6)(a)), which provides that minors 15 years of age and older shall be criminally prosecuted for certain felonies, including first degree murder. Respondent, on the other hand, was charged as a juvenile on October 6, 1988, on a petition for adjudication of wardship. That same day, the State filed a motion to permit respondent’s prosecution as an adult under the criminal laws, pursuant to section 5— 4(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805—4(3)(a)), which allows a judge to transfer a juvenile to adult court if in his discretion he finds that it is in the best interests of the minor and society to do so.

THE TRANSFER HEARING

At respondent’s transfer hearing on October 28, 1988, the State presented the testimony of two witnesses, Detective Ron Armata of the Chicago police department, and Gregory Harris, a juvenile probation officer. The parties stipulated that Dr. Perruza, a certified pathologist, would testify that the primary cause of Ms. Larkin’s death was blunt trauma to her head, and the secondary cause, asphyxia due to a foreign object in her throat. Respondent did not present evidence on his own behalf.

On October 5, 1988, respondent dictated a written confession in the presence of Detective Armata. According to respondent, Owen was his friend, and Patrick was Owen’s cousin, whom respondent knew only “so-so.” Having learned from Patrick that Ms. Larkin had large sums of money, which she kept in her home and carried on her person, the three of them planned to burglarize her apartment. Patrick talked them into the burglary, which they discussed on some five occasions before carrying it out. On one such occasion, about a week before the burglary, they gathered on Patrick’s porch across the street. Patrick timed Ms. Larkin with a stopwatch and determined that she stayed on her porch for at least 17 minutes at a time.

On October 4, 1988, they put their plan into action. Patrick checked to make sure that Ms. Larkin was on her porch with her neighbor, then entered her apartment through her bedroom window with a crowbar, followed by respondent and Owen. Once inside, Patrick kept a lookout, while respondent and Owen began searching the drawers in the bedroom. Upon hearing a door open, they hid in the bathroom. Patrick stood by the door with the crowbar, respondent stood behind him, and Owen sat on the toilet seat. As Ms. Larkin walked past the door, Patrick hit her over the head with the crowbar, and she fell down. All respondent could see through the doorway was her feet.

Respondent and Owen resumed searching her bedroom for money. Meanwhile, Ms. Larkin tried to get up, and Patrick hit her again, holding her down with his foot. Respondent knew she was alive because he could hear her moaning. They continued their search for 5 or 10 minutes, but found no money. When Ms. Larkin tried to get up once more, respondent saw Patrick hit her much harder than before, with both hands on the crowbar. At this point respondent jumped out the window. According to his confession, it was part of their plan that Patrick would watch over her and that they had “talked about hitting her [but] not to do all that to her.”

Later that day, some friends sent by Owen informed respondent that Ms. Larkin had died, and he and Owen discussed confessing their crime to the police. Respondent called his mother and told her everything, and on the next day, she accompanied him to the police station, where he turned himself in.

Detective Armata testified further that while inspecting Ms. Larkin’s first-floor apartment at 6441 South St. Lawrence, Chicago, on the day after the murder, he observed a large amount of blood on the carpet and splattered on the walls about 10 feet from the bathroom. The two bedrooms were in complete disarray. The bedroom window through which the youths had entered was not visible from the front porch and was located about three feet above a four-foot high chain link fence.

According to a report prepared by Chicago police officer White, on the day of the murder he discovered Ms. Larkin’s body lying adjacent to the bathroom. At that time she was possibly still alive and bleeding profusely from the head, which was covered in a blood-soaked sheet. Her ankles and her left wrist were tied with a belt.

The State’s next witness, Gregory Harris, a juvenile probation officer, testified that he had conducted a social investigation of respondent and recommended retaining him under the jurisdiction of the juvenile court. In preparing his report, he took into account his interviews with respondent’s teacher, assistant school principal and mother, respondent’s delinquent background and a police report concerning the events of October 4, 1988.

Ms. Parker, respondent’s teacher, at McCosh Elementary School, informed Harris that respondent was often truant, having missed six days of school in September and two days in October, including the day of the murder, October 4, 1988. She also said that she had a “bad feeling” about respondent because he was hanging around a group of bad friends, among whom was codefendant Owen. However, he was neither violent nor ever a problem to other students. The assistant principal of McCosh Elementary School told Harris that in his opinion respondent was “slick and sneaky.”

Respondent’s mother stated that she never had any problems with respondent at home: she was able to control him, and he was always jovial and very respectful to her and got along well with other members of the family. The main problem she had with him was his truancy, but there was little she could do about it because she worked during the day. When notified by the school on October 4, 1988, that he was missing, she had had no idea where he was.

During his interview with Harris, respondent cried and was concerned about his mother and his future. He talked about school and how wrong he had been for missing days. Harris noted that his behavior reminded him generally of the behavior of a young man.

Respondent’s delinquent background included one court referral for possession of a stolen motor vehicle which the State had dismissed with leave to reinstate and one station adjustment for possession of marijuana.

Harris also considered a police report compiled by a youth officer, but, contrary to normal practice, did not review the general case report or the detectives’ report, both of which were offered to him a week earlier by the State. During his questioning, the State confronted him with the gruesome details of the murder and brought to his attention other aggravating circumstances, including facts that the burglary had been planned for a month, that the victim, an elderly woman, was found with a blood-soaked sheet covering her head and with her hands and feet bound, that the victim’s telephones had been ripped out of the wall, that a lead pipe and crowbar were recovered from the apartment, that codefendants Patrick and Owen had made self-incriminating statements and that both had automatically transferred to adult criminal court. Harris admitted knowing that respondent had made a confession taken by a court reporter and understood that according to the principle of accountability respondent could be found guilty as the person who actually killed Ms. Larkin. Harris testified, however, that none of these factors would persuade him to alter his conclusion in his report that respondent “was in the wrong place at the wrong time” or to change his recommendation not to prosecute respondent under the criminal laws.

During cross-examination by respondent’s counsel, Harris said he was aware that if tried under the criminal laws respondent’s minimum sentence would be 20 years’ imprisonment, but was not aware that the maximum could be natural life in prison if the judge found that the crime was committed in a brutal and heinous manner. In spite of this, Harris believed that, considering respondent’s age, he could benefit from the educational and social setting, recreational programs and peer association at the juvenile division of the Department of Corrections, where he would be monitored much more closely than at an adult facility. He acknowledged, however, that if tried as an adult, respondent would receive the same services and remain in the custody of the juvenile division until his 21st birthday.

Harris testified during re-cross-examination that he did not have an opinion concerning the respondent’s degree of maturity or at which stage of social development he should be according to his age.

In closing arguments, the State reviewed the evidence in light of the six factors the court must consider under section 5—4(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805—4(3)(a)), and argued with reference to the sixth factor that it would be in the best interests of both respondent and society at large that he be kept in custody beyond the age of majority (Ill. Rev. Stat. 1987, ch. 37, par. 805—4(3)(a)(6)). Respondent’s counsel asked the court to consider that respondent could be rehabilitated in the next seven years and “does not present such a danger to himself or to society that would require the Court to incarcerate him beyond his majority.”

The trial judge denied the State’s motion to transfer respondent to the jurisdiction of the criminal courts. With respect to the first five statutory factors, the judge found that (1) although home invasion might have presented a problem because the victim was not inside the apartment when respondent entered (see Ill. Rev. Stat. 1987, ch. 38, par. 12—11), there was sufficient evidence for a grand jury to indict respondent for at least murder and residential burglary; (2) the offenses were premeditated; (3) at the time the offenses were committed, respondent was 14 years old, a “tender age,” but if he were 15, he would have automatically transferred to adult criminal court; (4) respondent had no history of delinquency apart from one station adjustment and one court referral that was dismissed; and (5) whether prosecuted in the juvenile or criminal system, respondent would spend the first seven years in the custody of the same Department of Corrections. The judge addressed the sixth factor as follows:

“Then you come to the last question of whether it is in the best interest to keep the minor beyond his majority.
Therefore the Court denies the 5 — 4 Petition keeping the matter in Juvenile Court ***.”

Opinion

Section 5 — 4(3) of the Juvenile Court Act provides as follows:

“(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing ***, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.
(a) In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 —4(3)(a).)

This section was amended in response to the decision in Kent v. United States (1966), 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045, wherein the Supreme Court held with respect to a transfer statute from another State that in order to pass constitutional muster, such a statute must set forth specific standards for the purpose of controlling the court’s discretion. See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

In a transfer hearing, the burden is upon the State to present sufficient evidence to persuade the juvenile judge to grant a motion to transfer. (Taylor, 76 Ill. 2d at 304, 391 N.E.2d at 372.) Provided the juvenile judge considers each of the six statutory factors and any other relevant matters, his decision is “a product of sound judicial discretion which will not be disturbed on review.” People v. Clark (1987), 119 Ill. 2d 1, 14, 518 N.E.2d 138, 144; In re Burns (1978), 67 Ill. App. 3d 361, 385 N.E.2d 22.

Respondent correctly states that People v. M.D. (1984), 101 Ill. 2d 73, 461 N.E.2d 367, is the only Illinois decision reversing a juvenile judge’s determination to retain jurisdiction. M.D. was charged with committing two murders at the age of 15. With the purpose of seeking out revenge against Gregory Jackson, a gang member who had allegedly assaulted and harassed M.D. in the past, M.D. armed himself with a weapon and enlisted the aid of a friend who was also armed. Together they “hunted down” Gregory at a laundromat, where a shoot-out occurred resulting in the deaths of Gregory and his brother, Vincent. M.D. shot Vincent four times, but missed Gregory, who was killed by M.D.’s friend.

M.D. had a lengthy history of delinquency, including a prior adjudication of delinquency for burglary for which he served one year of probation and eight station adjustments for various offenses, three of which occurred during his probationary period.

The court found that M.D.’s experience was far beyond his age of 15 years, because he abused alcohol and marijuana and had sex with two different girlfriends. Furthermore, the court noted that under the amended provisions of the Juvenile Court Act (see Ill. Rev. Stat. 1987, ch. 37, par. 805—4(6)(a)), as a 15-year-old, M.D. would have been automatically transferred to adult court.

A psychologist testified that M.D. was dangerous; and a psychiatrist stated that M.D. was proud of the murders and felt that he had a right to revenge. In the psychiatrist’s opinion, if he were allowed back on the street, “he [would] be in bigger trouble.”

Considering this evidence in light of the six factors set forth in section 2—7(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702—7(3)(a), later recodified as Ill. Rev. Stat. 1987, ch. 37, par. 805—4(3)(a)), the supreme court found that the juvenile judge abused his discretion when he denied the State’s motion to transfer M.D. to adult jurisdiction.

The State argues that People v. M.D. is a model for reversal in the present case, because the two cases are “nearly identical.” As respondent points out, however, the similarity ends with the fact that both juveniles were charged with murder. Concededly, in both cases a grand jury indictment was highly probable, and the crimes were aggressive and premeditated, but in People v. M.D., the court found that M.D. (1) had experience well beyond his age of 15 years; (2) had an extensive delinquent background, was consequently “very familiar with the criminal justice system” and would be automatically tried as an adult if the amended statute were applicable; (3) had been exposed to the educational, counselling and therapy programs of the juvenile division in the past but had not benefitted from them; and (4) was of below normal intelligence and dangerous, so that his incarceration beyond the age of majority would be in the best interests of both himself and the public. The court also noted that the fact that a minor did not personally kill is an “important mitigating factor” not present in M.D.’s case.

None of the foregoing aggravating factors is present in the case of respondent D.B. In fact, although legally accountable for the murder, respondent did not personally kill. Several other mitigating circumstances, discussed below in the context of the six factors set forth in section 5 — 4(3)(a) of the Juvenile Court Act, militate against trying respondent in the adult criminal courts.

(1) Possibility of indictment. Respondent does not contest that a strong possibility of indictment exists for the crimes of murder and residential burglary. But he appropriately emphasizes that he did not personally kill, a fact which decisively persuaded at least one court, in In re Burns (1978), 67 Ill. App. 3d 361, 385 N.E.2d 22, to affirm a denial of transfer.

(2) Premeditated and aggressive nature of offense. It cannot be gainsaid that the torturous murder of an elderly woman with a crowbar during the course of a burglary is an aggressive and gruesome crime, especially in light of the fact that defendants planned to incapacitate the victim if she happened to return during the burglary. Nevertheless, the nature of the crime is only one factor among several which the court should use for guidance. As expressed in In re Burns (67 Ill. App. 3d at 370-71, 385 N.E.2d at 29), reversing a juvenile court’s decision to keep the minor in the juvenile system for every crime involving loss of life “would *** elevate the extent to which the minor’s offense shocks the public conscience above the other factors the statute mandates courts to consider in a proceeding of this type,” in effect depriving the court of its legislatively endowed discretion. We also take into consideration that respondent confessed the crime to his mother the same night and to the police the very next day, acts that reflect respondent’s remorse and a willingness to take responsibility for his wrongful behavior.

(3) The age of the minor. Respondent was 14 years old at the time of the offense. Unlike M.D., respondent was too young to qualify for the automatic transfer provisions of section 5—4(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 805—4(6)(a)). Also, unlike M.D., who admitted abusing alcohol and drugs and enjoying sex, respondent did not exhibit the experience of someone well beyond his years. As respondent indicates, one station adjustment for possession of marijuana, although probative for the purpose of assessing his delinquent background, falls short of proving his involvement with illegal drugs. At the hearing, the probation officer and juvenile judge, both professionals experienced in juvenile matters who had an opportunity to observe respondent, concluded respectively that respondent possessed the emotions of a young man and was at a “tender age.” Similar observations were never made with respect to M.D.

(4) The previous history of the minor. As noted above, respondent had one station adjustment for possession of marijuana and one court referral for possession of a stolen motor vehicle, which the State had stricken with leave to reinstate. A station adjustment occurs when the police take a minor to the police station, but release him after deciding not to prosecute. (People v. M.D. (1984), 101 Ill. 2d 73, 79, 461 N.E.2d 367, 370.) Although station adjustments are “probative and relevant” in transfer proceedings “because they enable the trial court to determine the proper disposition” (People v. M. D., 101 Ill. 2d at 79, 461 N.E.2d at 370; People v. Newell (1985), 135 Ill. App. 3d 417, 481 N.E.2d 1238), they are no more than “a verbal warning from the police” (People v. Clark (1987), 119 Ill. 2d 1, 9, 518 N.E.2d 138, 141-42). After examining the details concerning two of three station adjustments of the minor in Clark, the court found him culpable in only one of the cases and concluded that he “had virtually no criminal history whatsoever.” (119 Ill. 2d at 20-21, 518 N. E.2d at 147.) In the present case, in contrast to M.D. and Clark, respondent had had only one station adjustment, and the judge did not have the benefit of any evidence of the surrounding circumstances to help him determine respondent’s culpability. Neither was there any evidence available concerning respondent’s court referral for possession of a stolen automobile. Clearly respondent’s familiarity with the juvenile justice system does not come close to that of M.D.; thus, the supreme court’s decision to treat M.D. as an adult offender is not persuasive in this case.

(5) Availability of juvenile facilities. In People v. M.D. (101 Ill. 2d at 86-87, 461 N.E.2d at 374), the court noted that consideration of facilities particularly available to the juvenile division for the treatment and rehabilitation of a minor embraces two points. First, the court recognized that until the minor reached the age of 21, he would be kept in the same facilities regardless of whether he was processed as a juvenile or an adult. Under Illinois law, if respondent were convicted of murder in criminal court, he could serve a minimum of 20 years in prison and a maximum of natural life. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(1).) With good time credit (Ill. Rev. Stat. 1987, ch. 38, par. 1003—6—3(a)(2)), this minimum could be reduced to 10 years; thus, even if he served the first seven years in the custody of the juvenile division, he would have to spend a minimum of three additional years in adult prison. Second, the court in M.D. inquired to what extent M.D. benefitted from juvenile programs in the past and found no evidence of any benefits, although the respondent had been through several such programs. In the present case, respondent was never exposed to any juvenile programs; hence, it would be premature to predict that he would not be amenable to treatment and rehabilitation in the juvenile system.

(6) Whether the best interests of the minor and the security of the public would require keeping the minor in custody beyond his majority. Apart from the commission of the offenses at issue, there is no evidence in the record that respondent is an otherwise violent or dangerous person. His teacher’s greatest concern was that he had fallen in with a group of bad friends, and his mother stated that apart from his truancy she had never had any problems with him. It appears from the record that his relationship with his family was very good. And finally, as we have noted earlier, it was not respondent who " wielded the murder weapon.

The State cites at least 17 Illinois cases affirming the transfer of minors to adult court. However, the facts in each of those instances are distinguishable from the facts at bar. For example, in the three cases which dealt with 13-year-old minors, the degree of their involvement in the commission of the alleged crimes was much greater than respondent D.B.’s. In People v. Taylor (1983), 113 Ill. App. 3d 467, 447 N.E.2d 519, aff’d as modified (1984), 101 Ill. 2d 377, 462 N.E.2d 478, respondent slashed a 17-year-old victim’s throat and stabbed her in the chest. In People v. Thomas (1981), 94 Ill. App. 3d 895, 896, 419 N.E.2d 480, 482, after verbally assaulting two passersby on the street, respondent shot one of them in the back and ran up to the other, telling him “I hit the girl.” In People v. Jones (1980), 86 Ill. App. 3d 253, 408 N.E.2d 79, rev’d in part on other grounds (1981), 85 Ill. 2d 559, 435 N.E.2d 1143, respondent entered the home of an elderly couple in the night, locked the husband in the basement and raped the wife at knifepoint, continuing his act even after the police arrived. In the present case, respondent played only a passive role in the acts that made this crime particularly violent and offensive. Thus, in light of our narrow standard of review, we are of the opinion that the trial judge did not abuse his discretion when he found that respondent should remain in the juvenile system.

The State also contends that this court should reverse the juvenile court’s order on procedural grounds, because the trial judge did not specify his reasons for denying the motion to transfer with respect to the sixth statutory factor, which he merely restated before giving his decision. In Kent v. United States (1966), 383 U.S. 541, 561, 16 L. Ed 2d 84, 97, 86 S. Ct. 1045, 1057, the Supreme Court held that in a juvenile transfer hearing the court must state its reasons for its disposition “with sufficient specificity to permit meaningful review.” With regard to the Illinois transfer statute, our supreme court held that “while no formal statement of reasons or conventional findings of fact are necessary, the juvenile judge must take care to preserve a record sufficiently explicit so that his exercise of discretion may be reviewed meaningfully.” (People v. Taylor (1979), 76 Ill. 2d 289, 301, 391 N.E.2d 366, 371.) The court also found that the constitution does not require a “mathematical formula” to govern the trial court’s decision. 76 Ill. 2d at 305, 391 N.E.2d at 373.

Significantly, in People v. M.D. (1984), 101 Ill. 2d 73, 461 N.E.2d 367, the juvenile judge failed to provide any formal statement of reasons or findings of fact with respect to his decision to keep M.D. in the juvenile system. Nevertheless, after referring to the rule in Taylor, the court proceeded to review the juvenile judge’s exercise of discretion by examining the evidence in the record. 101 Ill. 2d at 84, 461 N.E.2d at 373; see also People v. Underwood (1978), 72 Ill. 2d 124, 127, 378 N.E.2d 513, 514-15.

Since all of the evidence which the trial judge in the instant case had at his disposal in making his decision is also before this court, his failure to specify his reasoning with respect to the sixth factor is not fatal. Moreover, considering that in M.D. the court reversed the judge’s decision without a formal record of his reasoning, we do not hesitate to affirm on a record that is more complete.

Affirmed.

DiVITO, P. J., and BILANIC, J., concur.