author: JUSTICE GOLDENHERSH

text:
    CATHRYNE ROBERSON, Plaintiff, v. BELLEVILLE ANESTHESIA ASSOCIATES, LTD., Defendant and Counterdefendant-Appellee (Memorial Hospital, Defendant and Counterplaintiff-Appellant and Third-Party Plaintiff-Appellant; Paul Sander, Third-Party Defendant-Appellee).
    Fifth District
    No. 5—89—0754
    Opinion filed May 9, 1991.

      Thompson & Mitchell, of Belleville (Allan M. Goodloe, Jr., and Mark S. Schuver, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Robert W. Schmieder, Stephen R. Swofford, and Bruce L. Carmen, of counsel), for appellee Paul Sander.
    Richard E. Boyle and Thomas R. Peters, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee Belleville Anesthesia Associates, Ltd.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant and third-party plaintiff, Memorial Hospital (the Hospital), appeals from an order of the circuit court of St. Clair County dismissing its claim for contribution against third-party defendant, Dr. Paul Sander (Dr. Sander). Defendant also appeals from an order of the circuit court of St. Clair County dismissing its indemnity claims against defendant, Belleville Anesthesia Associates, Ltd. (Belleville Anesthesia), and third-party defendant Dr. Sander. Plaintiff, Cathryne Roberson, is not a party to this appeal. In this cause, the hospital raises the following issues: (1) whether the circuit court erred in finding a good-faith settlement: (2) whether the circuit court erred in dismissing the contribution claim; and (3) whether the circuit court erred in dismissing the indemnity claims pursuant to the four-year statute of limitations. This court affirms.

On December 5, 1988, plaintiff, by her brother, next friend, and guardian, Benjamin Isaac, filed a medical malpractice action against Belleville Anesthesia and the Hospital alleging that as a result of defendants’ negligence in administering anesthesia on August 1, 1983, plaintiff suffered hypoxia during the delivery of her child. On May 30, 1989, the Hospital was granted leave to file a third-party claim against Dr. Sander, who it alleged was responsible for administering the anesthesia. The third-party complaint sought contribution from Dr. Sander pursuant to the Contribution Among Joint Tortfeasors Act (the Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). The complaint also sought indemnification from Dr. Sander alleging that if Belleville Anesthesia was an apparent agent of the Hospital, then Dr. Sander, as an employee of Belleville Anesthesia, should indemnify the Hospital. The Hospital also filed a counterclaim against Belleville Anesthesia under both the Contribution Act and a similar indemnity theory.

On June 22, 1989, Dr. Sander filed a motion to dismiss the third-party complaint alleging that the claims were barred by the four-year statute of limitations applicable to physicians and hospitals. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212.) Dr. Sander argued that the statute of limitations applies to all actions arising out of conduct by certain people in the health care profession. On July 6, 1989, the circuit court, citing Antunes v. Samerng Sookhakitch (1989), 181 Ill. App. 3d 621, 537 N.E.2d 333, and noting its conflict with Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441, 535 N.E.2d 1131, held that the statute of limitations did not apply to claims for contribution. The circuit court denied the motions to dismiss with regard to the statute of limitations.

On August 8, 1989, the Hospital filed a second amended third-party complaint. Belleville Anesthesia filed a motion to dismiss also alleging that the claims were barred by the statute of limitations. On October 11, 1989, the motion was argued, Belleville Anesthesia and Dr. Sander taking the position that the statute of limitations should apply to both the contribution and indemnity claims. The motion was taken under advisement.

On October 11, 1989, the circuit court also held a good-faith hearing concerning a proposed settlement agreement between plaintiff, Belleville Anesthesia and Dr. Sander. The settlement was in the nature of $1 million, but was imprecise because of the possibility of a structured settlement. The money was being tendered by Belleville Anesthesia’s and Dr. Sander’s insurance company. The settlement released Dr. Sander from liability to plaintiff, even though plaintiff had no access to Dr. Sander’s insurance policy, for $1 and other valuable consideration.

The Hospital’s counsel objected to the settlement because he had not been allowed to inspect the settlement documents. The Hospital further objected that the $1 paid by Dr. Sander was nominal consideration for a release from liability.

On October 12, 1989, the circuit court reversed its previous order of July 6, 1989, and held that the Hospital’s indemnity counts against both Belleville Anesthesia and Dr. Sander should be dismissed for failure to file within the four-year statute of limitations. The court further found that the settlement was in good faith and therefore dismissed the contribution counts.

On November 9, 1989, the circuit court entered its order finding no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The Hospital filed notices of appeal on November 13, 1989. On July 24, 1990, we granted a motion to cite Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873, as additional authority.

The Hospital’s first issue on appeal is whether the circuit court erred in dismissing its implied indemnity claims pursuant to section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—212). Both Dr. Sander and Belleville Anesthesia respond that according to the statute, any action for medical malpractice must be brought within four years from the date of the act or omission which allegedly constituted malpractice.

Belleville Anesthesia and Dr. Sander also argue that the enactment of the Contribution Act abolished the doctrine of implied indemnity. Since our opinion is dispositive of the case for other reasons, we do not reach this issue.

Section 13 — 212 provides in relevant part:

“(a) Except as provided in Section 13 — 215 of this Act, no action for damages for injury or death against any physician *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought *** more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” Ill. Rev. Stat. 1987, ch. 110, par. 13—212(a).

The supreme court clearly stated that section 13—212(a) bars third-party claims for contribution against doctors. (Hayes, 136 Ill. 2d 450, 557 N.E.2d 873; see also Vogt v. Corbett (1990), 138 Ill. 2d 482, 486, 563 N.E.2d 447, 449.) As the contribution claim was brought after the expiration of the four-year statute of repose, the claim was barred, and the circuit court was correct.

The Hospital argues in its reply brief that only count I of its third-party complaint was based upon contribution. Count II was based upon an implied indemnity theory. In Hayes, the supreme court determined that an “action for damages” as provided by section 13— 212 included third-party actions for contribution. The court’s rationale is equally as convincing when applied to an implied indemnity claim. As is the case with contribution, the basis of an indemnitor’s obligation rests on his liability in tort to the injured party. The indemnitor is obligated for the damages directly created by the indemnitor’s negligent actions. An action for implied indemnity is just as much an “action for damages” as is an action for contribution under section 13—212. See Hayes, 136 Ill. 2d at 457, 557 N.E.2d at 876.

We do not mean to say that every action for indemnity is governed by section 13 — 212. Section 13 — 212 applies only to actions for implied indemnity, not to claims for express indemnity. An action for express indemnity, which is based on a contract, is governed by section 13—206 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—206). Actions for express indemnity are not affected by the Contribution Act. Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 27, 495 N.E.2d 496, 497; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 752, 520 N.E.2d 932, 937; Stephan v. Sears, Roebuck & Co. (1986), 147 Ill. App. 3d 833, 837, 498 N.E.2d 687, 690.

The Hospital’s next issue on appeal is whether the circuit court erred in finding a good-faith settlement. The Hospital specifically argues that the court failed to consider all factors relevant to the determination of good faith. Belleville Anesthesia and Dr. Sander respond that, first, the Hospital did not meet its burden of proving lack of good faith, and second, the record does not affirmatively reflect error.

The First District Appellate Court set out the applicable standard in Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 537 N.E.2d 871, when it said:

“The [Contribution] Act does not define good faith. However, the Illinois Supreme Court has stated that when determining whether an agreement was entered into in good faith, courts must take into account the entire circumstances surrounding the settlement. [Citation.] Where a preliminary showing of good-faith settlement is made, a presumption of validity arises. [Citations.] Once the preliminary showing has been made, the burden shifts to the party opposing settlement, who must prove by clear and convincing evidence that the settlement is invalid.” (181 Ill. App. 3d at 829-30, 537 N.E.2d at 872-73.)

Moreover, Illinois courts have left the question of what is required for a finding of good faith to the broad discretion of the circuit court. (Ruffino v. Hinze, 181 Ill. App. 3d at 832, 537 N.E.2d at 874; Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 751-52, 520 N.E.2d 932, 937; Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 765, 484 N.E.2d 1232, 1235 (circuit court in the best position to determine what type of hearing is necessary to fully adjudicate the issue of good faith); Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 128, 478 N.E.2d 581, 587-88.) A separate evidentiary hearing is not required. Ruffino, 181 Ill. App. 3d 827, 537 N.E.2d 871; Lorenz v. Air Illinois, Inc. (1988), 168 Ill. App. 3d 1060, 1064, 522 N.E.2d 1352, 1355; Perez v. Espinoza (1985), 137 Ill. App. 3d 762, 484 N.E.2d 1232; Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 128, 478 N.E.2d 581, 587.

Although a separate evidentiary hearing is not required, the circuit court did hold a hearing. It listened to the arguments by all parties. We do not believe the Hospital met its burden of proving by clear and convincing evidence the invalidity of the proposed settlement. As in Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122-23, 499 N.E.2d 1373, 1380, the circuit court was very much involved in the litigation before it. The record indicates the court had a thorough knowledge of the case and its surrounding circumstances. In light of the very broad discretion standard established by our supreme court, we cannot see an abuse of discretion here. In our opinion, the very act of settling creates a presumption of good faith. (Bituminous Insurance Cos. v. Ruppenstein (1986), 150 Ill. App. 3d 402, 405, 501 N.E.2d 907, 909, citing Wasmund v. Metropolitan Sanitary District (1986), 135 Ill. App. 3d 926, 482 N.E.2d 351.) Once Belleville Anesthesia and Dr. Sander made a preliminary showing of settlement, the burden shifted to the Hospital, which did not prove by clear and convincing evidence that the settlement was not in good faith. In light of the evidence presented to the circuit court, the record does not indicate an abuse of discretion.

Finally, the Hospital specifically complains that the court failed to inquire about a “Mary Carter” agreement. The record, however, indicates that counsel for both Belleville Anesthesia and Dr. Sander stated to the court that such an agreement did not exist. Once again, deferring to the circuit court’s discretion, and referring to the record, we see no reason not to accept the word of these attorneys.

“The factors that affect a plaintiff’s decision to settle are multifarious. Thus, it is impossible to formulate a bright-line test to articulate when the amount of disproportionality indicates bad faith in all cases. It is therefore preferable to allow a trial judge a considerable amount of discretion in deciding what type of evidentiary hearing should be held to produce the facts necessary for the court to decide based upon all the circumstances.” Perona & Murphy, Good Faith Settlement Under the Contribution Act: Do Trial Courts Have Too Much Discretion?, 20 Loy. U. Chi. L.J. 961, 972 (1989).

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE HAWKINS, Defendant-Appellant.
    Fifth District
    No. 5—89—0861
    Opinion filed May 13, 1991.

      Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Basil G. Greanias, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Johnnie Hawkins was charged with unlawful possession of weapons by a felon. Hawkins filed a motion to suppress evidence, alleging that the police had engaged in a pretextual stop and that the subsequent search of defendant’s bag was not supported by probable cause. The motion was denied. On December 1, 1989, a stipulated bench trial was conducted, and the court found Hawkins guilty. Hawkins was sentenced to three years in the Department of Corrections. On appeal he argues that his conviction must be vacated because his stipulated bench trial was tantamount to a guilty plea, and he was not admonished pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402).

At the stipulated bench trial the State informed the court that the evidence the State would present if the case were brought to trial would consist of the testimony of Detectives Matthews and Del Marion and the fact that Hawkins was convicted of armed robbery in 1978. The court asked defense counsel whether the testimony of Detectives Matthews and Del Marion would be the same as it was at the suppression hearing if they were called as witnesses at the bench trial. Defense counsel stated that it would be. Defense counsel did not present any stipulated evidence.

It is the rule in Illinois that a stipulated bench trial is not tantamount to a guilty plea if the defendant presented and preserved a defense. (People v. Horton (1991), 143 Ill. 2d 11; People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760; People v. Hart (1986), 144 Ill. App. 3d 103, 494 N.E.2d 226.) In Horton, a case involving two stipulated bench trials, the court found that defendant’s first stipulated bench trial was not tantamount to a guilty plea even though defense counsel conceded the sufficiency of the evidence. Prior to the stipulated bench trial, defense counsel had filed a motion to suppress identification evidence, and the motion had been denied. At the stipulated bench trial, after the State’s closing argument, defense counsel commented that defendant was not contesting the sufficiency of the evidence to convict, but was preserving the previously denied motion for purposes of appeal. The supreme court found that defense counsel’s only viable alternative to engaging in a full trial was to proceed through a stipulated bench trial in order to preserve defendant’s suppression issue, and that although defense counsel commented that the evidence was sufficient to convict at the stipulated bench trial, the State still had to prove defendant guilty beyond a reasonable doubt. The Horton court concluded that the first stipulated bench trial was not tantamount to a guilty plea.

Like the Horton case, defense counsel in the instant case (1) filed a motion to suppress which was denied; (2) presented no evidence at the stipulated bench trial; and (3) presented no defense at the stipulated bench trial. It is apparent that defense counsel in this case opted to proceed through a stipulated bench trial for the purpose of preserving Hawkins’ suppression of evidence issue. As a defense was preserved, the stipulated bench trial was not tantamount to a guilty plea and Hawkins was not entitled to the admonitions provided in Supreme Court Rule 402.

For the reasons stated, we affirm defendant’s conviction.

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE HOWERTON

text:
    JOHN WARREN, Plaintiff-Appellant, v. GOLDY ALBRECHT et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0671
    Opinion filed May 13, 1991.

      Thomas W. Burkart, of Burkart Law Offices, of Hamel, for appellant.

      Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellees David McGaughey and Donald McGaughey.
    William A. Mudge, of Lucco & Brown, of Edwardsville, guardian ad litem for Glenn McGaughey and Patty McGaughey.
   JUSTICE HOWERTON

delivered the opinion of the court:

This appeal from an action to quiet title to land in Madison County involves the common law rule against perpetuities. James W. McGaughey devised land as follows:

“I give, devise and bequeath to John T. McGaughey, as Trustee, in Trust for John Warren, my grand-son, the following described real estate to wit: The south Thirty-eight (38) rods of the northeast quarter (NE1/4) of the southeast quarter (SE1/4) of section ten (10), containing 19 acres more or less, and north half (Nl/2) of the southwest quarter (SW1/4) of section eleven (11), containing eighty (80) acres, more or less, also the north three-fourths (N3/4) of the southwest quarter (SW1/4) of the southwest quarter (SW1/4) of section eleven (11), all of said lands in Township numbered Six (6) North, Range numbered Seven (7) West of the Third Principal Meridian, and situated in Madison County, Illinois.
The said John T. McGaughey, as such Trustee to have the control of said land above described, until the said John Warren becomes of the age of thirty (30) years of age ***. The above described real estate is given, devised and bequeathed too [sic] the said John Warren, and subject to said Trust named above for and during his natural life, and at his death, and at his death [sic] to his then living child or children, or survivors thereof, and in the event there be no descendents of said child or children, then to his sisters, viz: Emma B. Warren and Goldy Maude Warren, for the sole use and benefit forever, share and share alike, subject to the following conditions, viz: That in the event of the death of either of said sisters and leaving no child or children, or descendants of said child or children, then to the survivor, and if neither of said sister are [sic] living, then to my legal heirs at law, as per the laws of descent, share and share alike and for their sole use and benefit forever.”

James W. McGaughey died in 1943. John Warren, his two sons, Donald and Ronald Warren, and his two sisters, Emma B. Warren (Oliver) and Goldy Maude Warren (Albrecht), are living.

In 1987, John Warren’s sons, Donald and Ronald Warren, quit-claimed their interest in the land to their father.

In 1988, John Warren, plaintiff, brought an action to quiet title claiming that James W. McGaughey’s devise violated the common law rule against perpetuities. Both plaintiff and defendants filed motions for summary judgment. The circuit court granted defendants summary judgment. John Warren appealed.

The rule against perpetuities is a common law rule directed toward the remoteness of vesting. Its ultimate purpose is to prevent the “clogging of titles beyond reasonable limits in time by contingent interests, and to keep land freely alienable in the market places.” (R. Boyer, Survey of the Law of Property 158 (3d ed. 1981).) The rule provides:

“No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” Gray, The Rule Against Perpetuities §201, at 191 (4th ed. 1942).

See also Schuknecht v. Shultz (1904), 212 Ill. 43, 72 N.E. 37; Martin v. Prairie Rod & Gun Club (1976), 39 Ill. App. 3d 33, 348 N.E .2d 306; Ill. Rev. Stat. 1989, ch. 30, par. 191.

If, by any possibility, an interest cannot vest or fail within the 21-year limit, then the devise is void for remoteness. Thomas v. Pullman Trust & Savings Bank (1939), 371 Ill. 577, 21 N.E.2d 897; McKibben v. Pioneer Trust & Savings Bank (1937), 365 Ill. 369, 6 N.E.2d 619; Johnston v. Cosby (1940), 374 Ill. 407, 29 N.E.2d 608.

Interests subject to the rule are contingent remainders, executory interests (or devises), options to purchase land not incident to a lease for years, and powers of appointment. Interests not subject to the rule are present interests in possession, reversions, vested remainders, possibilities of reverter, powers of termination, charitable trusts, and resulting trusts. R. Boyer, Survey of the Law of Property 159 (3d ed. 1981).

Determining into which of these interests this case falls involves a three-step process. First, the language of the devise is explained. Secondly, the status of title is identified. Thirdly, the rule is applied.

In examining the language of the devise, the primary objective is to give effect to the testator’s intent by giving the testator’s words their plain and ordinary meaning. (Harris Trust & Savings Bank v. Beach (1987), 118 Ill. 2d 1, 513 N.E.2d 833.) Here, the language is plain. John Warren was to enjoy the property as beneficiary of a testamentary trust until he was 30 years old, after which the property became his for his life. At John Warren’s death, his children were to take the property, and if any of those children predeceased him, the surviving children were to take the property; if no children or descendants survived John Warren, the estate was to go to John Warren’s sisters, Emma and Goldy. If either Emma or Goldy died prior to taking, the survivor was to take; if both died prior to taking, the property would go to the testator’s heirs at law.

In identifying the status of title, we note that title is “[t]he right to or ownership in land.” (Black’s Law Dictionary 1331 (5th ed. 1979).) Determining the status of title is the process of identifying present and future interests transferred by a deed or a will. Only by this process can one determine if a particular future interest in the property violates the rule.

Here, John Warren was given a life estate. His child or children were given a contingent remainder in fee simple. The descendants of his children were given an alternative contingent remainder in fee simple. Emma and Goldy were also given an alternative contingent remainder in fee simple. James W. McGaughey’s heirs at law were not determined until his death, but after his death in 1943, they also possessed an alternative contingent remainder in fee simple.

Lastly, we apply the rule. In his complaint, John Warren claimed that the language — “and in the event there be no descendents of said child or children, then to his sisters” — violated the rule because John Warren’s children could be divested longer than 21 years after his death if his children were to die leaving no descendants. To determine if his analysis is correct, we first ask what interest is involved. Here, the children have an alternative contingent remainder in fee simple. A contingent remainder exists if there is a condition precedent to vesting. (R. Boyer, Survey of the Law of Property 37 (3d ed. 1981).) Here, the condition is that the children survive their father. Applying the rule, we note that once John Warren dies, the interest must necessarily vest or fail. John Warren will either have children survive him, or he won’t. Therefore, the devise to his children does not violate the rule. Warren argues that after the estate vests in his child or children, it can be divested if his child or children died without descendants. We disagree.

We believe that a plain reading of the devise indicates that the estate vests at the time of John Warren’s death. The language in the fifth paragraph of decedent’s will, in our opinion, clearly expresses his purpose. If John Warren’s children survive, the estate vests in them. If the children are not alive at John’s death, the estate vests in their survivors. If at the time of John’s death there are no children or descendants, the estate vests in John’s sisters. If the sisters or their children do not survive John’s death, then John’s heirs at law take the estate. The decedent provided for various alternatives, but, in any event, the estate vests at the life tenant’s death. The rule against perpetuities does not apply to vested interests. Chicago Title & Trust Co. v. Shellaberger (1948), 399 Ill. 320, 334, 77 N.E .2d 675, 683; Deiss v. Deiss (1989), 180 Ill. App. 3d 600, 536 N.E .2d 120; see also McKibben v. Pioneer Trust & Savings Bank (1937), 365 Ill. 369, 6 N.E. 619.

The appellant argues only that the wording in the devise that states “in the event there be no descendants of said child or children, then to his sisters” divests the interests of John Warren’s children. We do not ascribe to his argument. The ownership is vested at John’s death in someone or some class. Therefore, the rule does not apply. The law, of course, favors the vesting of estates at the earliest possible moment. Fay v. Fay (1929), 336 Ill. 299, 168 N.E. 357.

The trial court was correct in its granting of defendant’s motion for summary judgment, holding the devise did not violate the rule against perpetuities.

The circuit court of Madison County is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
      In re MARRIAGE OF M. LOUISE PITTMAN, Petitioner-Appellee, and PAUL C. PITTMAN, Respondent-Appellant.
    Fifth District
    No. 5—90—0328
    Opinion filed May 14, 1991.

      Pat Callahan, of Callahan & Moran, P.C., of Trenton, for appellant.
    Melissa A. Chapman, of Morris B. Chapman & Associates, Ltd., of Granite City, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

M. Louise Pittman filed a petition requesting prospective attorney fees to cover the expenses associated with defending the appeal filed by Paul C. Pittman pertaining to their dissolution of marriage. (See In re Marriage of Pittman (1991), 212 Ill. App. 3d 99. The circuit court of Madison County awarded Louise $3,500 payable within 30 days of the date of the order. Paul appeals from this order also, arguing the trial court improperly interpreted section 508(a)3) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)3)) in awarding Louise prospective attorney fees. We affirm.

Section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Act) once provided:

“(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
* * *
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.” (Ill. Rev. Stat. 1985, ch. 40, par. 508(a)(3).)

And, as the statute then stood, a split of authority arose as to whether a trial court could properly make a prospective award of attorney fees for defense of an appeal, especially during the pendency of that appeal. Both the first and third districts held that a trial court could properly make such an award (see, e.g., In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598; In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 429 N.E.2d 867), while the second and fourth districts found such awards improper (see, e.g., In re Marriage of Pease (1982), 106 Ill. App. 3d 617, 435 N.E.2d 1361; In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089). The rationales given in favor of allowing prospective attorney fees and costs included: (1) the need to diminish any advantage one spouse may have had over the other regarding pending litigation between them because of their respective financial circumstances (see In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 264, 507 N.E.2d 71, 77; In re Marriage of Edelberg (1982), 105 Ill. App. 3d 407, 411, 434 N.E.2d 440, 443); (2) the lack of any language in the Act prohibiting the award of attorney fees during the pendency of an appeal (see Giammerino, 94 Ill. App. 3d at 1060, 419 N.E.2d at 600); and (3) the fact that such an award was merely collateral to, involving a matter independent of any question raised by, the dissolution appeal itself (see Giammerino, 94 Ill. App. 3d at 1060-61, 419 N.E.2d at 600). (See also McBride, 102 Ill. App. 3d at 87-88, 429 N.E.2d at 869-70.) Reasons for rejecting prospective attorney fee awards included: (1) the trial court did not have jurisdiction to make an award of attorney fees for defense of an appeal while that appeal was pending as any award necessarily would have altered a decision then under review by transferring property from one spouse for the benefit of the other (see Legge, 111 Ill. App. 3d at 211-12, 443 N.E.2d at 1098); (2) section 508(a), by using the term “incurred,” referred to accumulated expenses only, not future ones (see In re Marriage ofJustema (1981), 95 Ill. App. 3d 483, 487-88, 420 N.E.2d 796, 798-99; Pease, 106 Ill. App. 3d at 623, 435 N.E.2d at 1367); and (3) the propriety of an award for legal services to be performed in the future was difficult to review on appeal (see Legge, 111 Ill. App. 3d at 212, 443 N.E.2d at 1098; Pease, 106 Ill. App. 3d at 623-24, 435 N.E.2d at 1367). Since this split arose, however, section 508(a) has been amended to specifically allow prospective fees. (See Ill. Rev. Stat. 1989, ch. 40, par. 508(a).) Section 508(a) now reads:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse, which award shall be made in connection with the following: ***.” (Emphasis added.)

The only remaining question then is whether such fees can be awarded during the pendency of the appeal. We believe the first and third districts have correctly answered this question also. We do caution, however, that prospective awards should be made cautiously and are to be based upon some viable evidentiary basis. (In re Marriage of Savas (1985), 139 Ill. App. 3d 68, 81, 486 N.E.2d 1318, 1327; Edelberg, 105 Ill. App. 3d at 411-12, 434 N.E.2d at 443; Giammerino, 94 Ill. App. 3d at 1061, 419 N.E.2d at 600.) And, as with any award for attorney fees and costs in a dissolution proceeding, the party seeking such an award must show not only his or her own financial inability to pay but also the ability of the other spouse to do so. (See Savas, 139 Ill. App. 3d at 81, 486 N.E.2d at 1327.) We further note such awards rest in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (See Savas, 139 Ill. App. 3d at 82, 485 N.E.2d at 1328; see also In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 319, 453 N.E.2d 866, 870-71.) We see no abuse of discretion in this instance. While the evidence at the hearing on Louise’s motion is scanty as to the parties’ respective financial resources, the trial court already was well aware of the parties’ economic situations, having recently presided over the distribution of their property. In addition, Louise’s attorney noted reasonable expenses that had already been incurred and estimated those expected to be incurred through oral argument. Again, the court was already familiar with the parties’ respective positions on the various mátters appealed and was more than able to evaluate for itself counsel’s estimate of expenses and hours to be expended in defense of the appeal. We therefore find no error in the trial court’s award of prospective attorney fees and costs during the pendency of Paul’s appeal in this instance.

For the aforementioned reasons, we affirm the judgment of the circuit court of Madison County.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE WOODWARD

text:
    PEABODY COAL COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ned Wright, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—90—0294WC
    Opinion filed May 14, 1991.
    Kevin M. Hazlett, of Keefe & DePauli, P.C., of Fairview Heights, for appellant.
    Robert C. Nelson, of Nelson, Bement, Stubblefield & Rich, of Belleville, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Ned Wright, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). The arbitrator awarded claimant temporary total benefits. The Industrial Commission (Commission) adopted the arbitrator’s decision. The Commission’s decision was confirmed by the circuit court. The respondent, Peabody Coal Company, appeals.

Respondent raises one issue on appeal, namely, the Commission’s decision that claimant’s condition of ill being was causally related to the accidental injuries he sustained on November 4, 1987, was against the manifest weight of the evidence. For an injury to arise out of one’s employment, the injury must have an origin in some risk connected with or incidental to the employment so that the employment and injury are causally connected. (Palmer House v. Industrial Comm’n (1990), 200 Ill. App. 3d 558.) It is the Commission’s function to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences and to decide which of the conflicting medical views is to be accepted. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382.) Further, a causal connection between work duties and a condition of ill being may be established by a chain of events including claimant’s ability to perform job duties before the date of accident and inability to perform the same duties following that date. Darling v. Industrial Comm’n (1988), 176 Ill. App. 3d 186, 193.

At the arbitration hearing, claimant testified as follows. He had worked for respondent as a coal miner since 1975. In 1983, he received a chymopapain injection following a work-related back injury. Claimant was compensated by the employer for said injury. In 1986, claimant injured his back again while in respondent’s employ and underwent a laminectomy. Again, his worker’s compensation claim was settled. In January 1987, he returned to work for respondent as a coal miner. He lost no time at work due to back complications prior to the instant injury.

On November 4, 1987, claimant was operating a machine called a scoop, which is built low to the ground and is difficult to enter. The scoop was bottomed in mud and, thus, lower than usual. Because the scoop was parked near the side of a tunnel, claimant had difficulty in entering the machine which, unlike others, did not have hand grips to simplify entry into the scoop. As claimant twisted to get into the scoop’s seat, he experienced a sharp, sudden pain in his back and right leg. Claimant was unable to enter the scoop and was thereupon taken to a hospital emergency room, where he was examined by Dr. Pflasterer, claimant’s treating physician. Dr. Pflasterer released him to return to work on November 11, 1987. Claimant attempted to continue working but experienced difficulty in moving and lifting heavy objects. Prior to the injury, he had loaded heavy roof blocks and roof bolts onto the scoop without difficulty. Following the injury, he did not operate the scoop nor did he perform heavy lifting tasks, leaving those to his co-workers. Claimant had trouble standing or sitting all day and would often lie down on a makeshift cot during his lunch hour.

Claimant, who had taken no pain medication prior to the subject injury, took same continuously afterwards. He experienced an aggravation of his discomfort once while carrying a 12-pack of soda and another time reaching for his truck’s dipstick. He continually suffered muscle spasms in his lower back following the incident until the time of his spinal fusion operation in November 1988. Claimant last worked on April 22, 1988, on which date he was shoveling coal for approximately 30 minutes when the resulting back pain caused him to stop shoveling. He finished the shift and did not return to work.

Dr. Pflasterer, claimant’s treating physician, testified via an evidence deposition. He had seen claimant in the capacity of family physician since 1984. He had treated claimant a number of times between claimant’s return to work in January 1987 and the instant injury. On November 4, 1987, he examined claimant at the Sparta Hospital emergency room for the subject injury. Dr. Pflasterer, who was familiar with a scoop, took a history of claimant’s injury while working with said machine. He found bilateral muscle spasms in claimant’s lower back, and he determined these findings to be objective. Diagnosing an acute lumbar strain, Dr. Pflasterer prescribed medication. Though claimant experienced soreness and stiffness, Dr. Pflasterer released claimant to return to work on November 11, 1987. He prescribed no restrictions on claimant’s work duties because “there is no way you can put any restrictions on them if they are going to work at the coal mine.”

Dr. Pflasterer saw claimant numerous times after the subject injury. On March 4, 1988, he found that claimant “had a two plus spasm in the left lumbar area, locked [sic] with a list [sic] when he came in, and he was not able to work.” Claimant was released to return to work on March 21, 1988. He saw claimant on April 22, 1988, at which time claimant was unable to work.

As to the issue of causal connection, Dr. Pflasterer opined that the acute strain claimant suffered while entering the scoop was the cause of the back problems he had experienced since November 4, 1987. The subsequent incidents in which claimant hurt his lower back by lifting grocery bags or reaching for a dipstick merely exacerbated his symptoms. Dr. Pflasterer based his opinion on the degree of claimant’s pain following the injury, his physical examinations of claimant and the history given by claimant.

At the request of respondent’s insurer, claimant was examined by Dr. Michael Ralph, a board-certified orthopedic surgeon, who testified by means of an evidence deposition. Dr. Ralph did not see claimant prior to the November 4, 1987, accident. He examined claimant on March 15, 1988, and May 20, 1988. On the first examination, Dr. Ralph found that claimant was not in acute distress. Claimant was able to walk on his toes and heels. He had negative straight-leg-raising in both sitting and lying positions. Dr. Ralph observed no muscle atrophy; claimant’s patellar and achilles reflexes were normal. Dr. Ralph found no involuntary muscle spasm. X rays indicated minimal post-operative changes. His examination of claimant on May 20, 1988, revealed similar findings.

Dr. Ralph opined that the abnormalities seen in an MRI scan of claimant’s lower back were from the previous surgeries. He found no causal connection between the subject injury and claimant’s subsequent complaints.

On cross-examination, Dr. Ralph conceded that he had not performed any back surgery since his medical residency. Further, he admitted that Dr. Murphy, who performed a spinal fusion on claimant in November 1988, had a different interpretation of the MRI scan performed on claimant. Where Dr. Ralph found minimal abnormalities, Dr. Murphy determined the following: a frank herniation at L5 — SI, posterior bulging at L3 — 4 and a herniated disc present at L3 — 4 on the right side. Dr. Ralph did not offer an opinion as to whether claimant’s lifting of grocery bags in December 1987 or his reaching for a dipstick in February 1988 was causally related to claimant’s complaints.

Also entered into evidence were records from St. Elizabeth’s Hospital regarding claimant’s admission on November 8, 1988, for a spinal fusion procedure at L5 — SI. The fact sheet recites claimant’s accident entering the scoop on November 4, 1987. Physical examination notes indicate restrictions in forward and backward bending. Bilateral paraspinal muscle spasms resulting in scoliosis directed to the left were noted. Claimant walked with a limp. Straight-leg-raising was positive on the right at 75 degrees and negative to the left. There was diminished pinprick sensation of the dorsum of the right foot. Further, the operative report dated November 9, 1988, refers to an underlying nerve root noted to be attenuated over a frankly herniated disc fragment with attendant calcification. Presurgical X rays taken on November 8, 1988, show a narrowing of the L5 — SI inter-space with post-laminectomy changes at L5 — SI which had occurred since the discectomy was performed in August 1986.

The arbitrator’s finding of a causal connection was based primarily on Dr. Pflasterer’s testimony, which unequivocally asserted a causal connection between the November 4, 1988, accident and claimant’s subsequent lower back problems. As stated above, the Commission adopted this finding in its decision.

Under these circumstances, we find that the Commission’s decision is not against the manifest weight of the evidence. It is evident that claimant experienced no substantial back pain prior to the November 4, 1987, accident and, following same, suffered significant back pain. Dr. Pflasterer, who saw claimant regularly before and after the subject injury, testified that claimant’s condition of ill being was causally related to the subject injury. His opinion is buttressed by the objective finding of muscle spasms in claimant’s lower back immediately following the accident at issue. Dr. Pflasterer’s testimony serves to balance that of Dr. Ralph, who saw claimant on only two occasions, both of which followed the subject injury. Moreover, Dr. Ralph’s testimony is undercut by Dr. Murphy’s analysis of the MRI scan and the objective findings contained in the St. Elizabeth Hospital records.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

McCULLOUGH, P.J., and McNAMARA, LEWIS, and STOUDER, JJ., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SUSAN PRATT, Defendant-Appellant.
    Fifth District
    No. 5—89—0678
    Opinion filed May 14, 1991.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Jean M. Henker, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Susan Pratt, was charged by indictment in Madison County with one count of aggravated battery to a child (Ill. Rev. Stat. 1987, ch. 38, par. 12—4.3) and four counts of cruelty to children and others (Ill. Rev. Stat. 1987, ch. 23, par. 2368) based on injuries suffered by her infant twin daughters, Christina and Jessica. Defendant’s husband, Bradley Pratt, was similarly charged. Following a bench trial on July 25-26, 1988, the trial court entered an order on June 14, 1989, finding defendant not guilty of aggravated battery and two counts of cruelty to children, and guilty of two counts of cruelty to children. Bradley Pratt was found guilty of all charges. On September 25, 1989, the trial court sentenced defendant to two concurrent two-year sentences of probation. Defendant appeals, contending that she was not proven guilty beyond a reasonable doubt.

The cruelty to children counts of which defendant was convicted charged, respectively, that defendant “wilfully and unnecessarily injured in health and limb Jessica Pratt, a child under her legal control, in that she failed to seek medical care for the injuries to the arm of Jessica Pratt” and “willfully [sic] and unnecessarily injured in health and limb Christina Pratt, a child under her legal control, in that she failed to seek medical care for the injuries to the head, torso and limbs of Christina Pratt.” Defendant contends that she was not proven guilty where the evidence shows that she in fact sought medical care for Christina and Jessica and, additionally, that Jessica’s health was not injured by any lack of care.

The record reveals that Christina Pratt and Jessica Pratt are twin girls born to defendant on January 9, 1987. At trial,' defendant testified that she was 26 years old and that Christina and Jessica were her only children. Defendant had been unaware that she was carrying twins until she went into labor. The babies were delivered by Caesarean section and were five weeks premature. After bringing the babies home from the hospital, a routine developed where defendant would care for the children during the day while her husband worked, and after she went to bed, he would take care of the overnight feedings. Defendant stated that after caring for the babies all day, she was exhausted and slept “[l]ike a rock,” never hearing her husband when he was up with the twins.

Defendant testified that she had never intentionally or accidentally harmed Christina or Jessica and had not seen her husband intentionally harm them, although he sometimes played a little roughly, swinging and “dipping” the babies. Bradley Pratt told defendant of two incidents where Christina was accidentally injured, once when she rolled off the couch and another time, shortly before her injuries were diagnosed, when he had stumbled and fallen with a full glass baby bottle, striking Christina in the head as she lay on the couch.

During January and February of 1987, defendant called or took the twins to their family physicians’ office numerous times. Defendant stated that she came to believe that the staff at the doctors’ office viewed her as an overanxious new mother. Doctors Raymond Weber and Stephen Staten, defendant’s family physicians, testified that defendant called about problems with Christina’s health six separate times from late January to mid-February and brought Christina to their office on January 27, February 6, 23, and 27. Dr. Weber testified that during the January 27 visit, defendant mentioned that Christina had rolled off the couch and that his nurse had noted a small bruise on the side of her face. Following a call to Dr. Weber on February 10, defendant took Christina to the hospital emergency room with flu symptoms. The doctors stated that defendant made three calls concerning Jessica during January and February, and that Jessica was seen at their office on February 5 and 6.

Defendant testified that on February 23 she asked Dr. Staten if Christina’s head seemed misshapen. Defendant stated that she did not suspect that Christina had a head injury but simply believed Christina’s head “looked funny.” Defendant further testified that after telling this to Dr. Staten:

“[H]e said, [‘]well all babies aren’t the same, you know.[’] And I told him that I didn’t mean to compare the children, because you’re not supposed to do that, but she does not do the things that Jessica does. You know, she sleeps all the time. She throws up. She’s just not right. Something is wrong with her.”

Dr. Staten recalled that defendant complained about Christina’s head, but could not remember if the complaint was made on February 23 or 27. Dr. Staten testified that he recorded any abnormalities he found, and though he did a head exam, nothing was noted for the February 23 visit, whereas on. February 27 Christina’s head injuries were apparent.

The twins’ paternal grandmother, Sherry Gamer, testified that after caring for the twins on Sunday, February 22, she advised defendant to take Christina to the doctor because she was listless, pale, and was “spitting up.” Mrs. Gamer also told defendant that she thought Christina’s head seemed misshapen. Defendant took Christina to the doctor the next day.

On February 27, defendant started a new job while the twins’ maternal grandmother, Gloria Berleman, baby-sat for them. Defendant testified that when she returned in the afternoon, she went to change Christina’s diaper and discovered that she was drooling and “making funny movements.” Defendant asked her mother to look at Christina, and Mrs. Berleman agreed that something was wrong with the baby. They decided to call the doctor, and defendant took Christina to his office. Mrs. Berleman testified in substantial agreement with defendant and stated that she had not noticed any other problems with Christina that day.

Dr. Staten examined Christina on February 27 and noted that she looked grossly different than she had on the twenty-third. Christina’s eyes were deviated to the left, and she was jerking her upper extremities back and forth, weighed five ounces less than on the twenty-third, and had a full fontanel, a symptom of brain injury. Dr. Staten testified that defendant told him the baby had been doing fine the previous day except for some excessive drooling. Dr. Staten noted several small bruises on Christina, including one under her right eye. According to Dr. Staten, defendant told him she had dropped a baby bottle on Christina’s face two days earlier. With Dr. Weber’s concurrence, Christina was transferred by ambulance to Cardinal Glennon Children’s Hospital (Cardinal Glennon) in St. Louis.

Paramedics James Anderson and Robert Bowman transported Christina to that hospital. Mr. Anderson recalled hearing defendant say at the doctors’ office that she had dropped a baby bottle on Christina. Mr. Bowman heard the remark but could not recall who had made it. Defendant denied telling anyone that she had dropped the bottle on Christina, stating that she had described her husband’s report of dropping the bottle to Dr. Staten.

Emergency room pediatrician Dr. Katherine Bowen testified that she examined Christina at Cardinal Glennon on February 27. When she arrived, Christina was having seizures and had an enlarged head and sunken eyes, symptoms consistent with intracranial injury. Further examination revealed that Christina had several small bruises and had suffered retinal hemorrhages in both eyes. Christina was admitted to the neurosurgery intensive care unit. Dr. Bowen testified that the injuries she observed were consistent with child abuse and that some of Christina’s injuries had occurred at different times. Dr. Bowen stated that the swelling in Christina’s head would have occurred gradually, perhaps over the course of a week, and that vomiting could be a symptom of brain injury.

Pediatrician Dr. James Monteleone, chairman of the child protection management team at Cardinal Glennon, testified that he reviewed medical reports on Christina’s condition. Christina was found to have one or possibly two skull fractures, a subdural hematoma, retinal hemorrhages, a suspected rib fracture, and a suspected hairline fracture or bone bruise of the left femur. Dr. Monteleone believed that Christina’s injuries indicated shaken infant syndrome, a form of child abuse, and that the various stages of healing indicated that the injuries had occurred over a period of up to one month. Dr. Monteleone stated that a child sustaining this type of head injury might exhibit no physiological symptoms other than convulsions, although vomiting was often a symptom. Dr. Monteleone “hoped” that a doctor receiving repeated complaints of vomiting would look for a health problem other than the stomach problems one would initially suspect.

Sheila Glaze, an emergency room social worker at Cardinal Glen-non who evaluated cases of child abuse, testified that she interviewed defendant and her husband at the hospital on February 27. Ms. Glaze stated that defendant told her that she had dropped a bottle on Christina. Bradley Pratt told Ms. Glaze that he had once tripped over the cat while carrying the baby. Ms. Glaze described defendant and her husband as being upset about Christina’s injuries and cooperative during their interviews.

After Christina had been admitted to Cardinal Glennon, it was requested that Jessica be brought in for examination. On March 1, 1987, Jessica was diagnosed as having healing fractures to her right humerus and left clavicle. The record indicates that Jessica had been seen by a Department of Children and Family Services (DCFS) worker on February 28, 1987, who reported that she had no outwardly observable injuries and displayed no signs of acute distress or pain. A radiologist reported to DCFS that the arm fracture was “very old.” Doctors Monteleone and Bowen termed Jessica’s injuries as being consistent with child abuse and agreed that the injuries were fairly old, i.e., more than two weeks. Defendant’s presentence investigation report indicates that Jessica suffered no permanent injury as a result of her fractures.

Susan Redman, an investigator for DCFS, testified that she interviewed defendant and her husband several times in early March 1987 about the twins’ injuries. Defendant was cooperative and reported to Ms. Redman that she had not seen Christina suffer any injuries. Defendant specifically denied having dropped a bottle on Christina herself, but stated that her husband had told her of Christina’s falling off the couch and his tripping and hitting the baby with a bottle. Defendant told Ms. Redman that one morning in early February she had noticed Jessica favoring one arm and that it appeared swollen, so she and her husband asked a relative, who was an emergency medical technician, about the arm.

Mrs. Garner recalled that defendant had called her at work one morning and said that Jessica was favoring one arm. Defendant asked Mrs. Garner to stop by and look at the baby. Mrs. Garner did not notice any redness or swelling, and Jessica was moving her arm. Mrs. Garner testified that she suspected a strained muscle or tendon because, although Jessica “was a little bit fussy,” she was doing nothing to make Mrs. Garner believe there was something seriously wrong.

Bradley Pratt testified, denying that he had ever intentionally harmed his daughters. Christina had been injured twice while he was caring for her. When she was three or four weeks old, Christina fell off the couch while he was heating her formula, and two or three days before she was hospitalized, Christina was struck with his hand and a bottle when he tripped and fell on her as she lay on the couch. Christina seemed less active after the first incident. He told defendant about both accidents soon after they happened, and she took Christina to the doctor the day after Christina fell off the couch.

Bradley Pratt had once noticed Jessica favoring one arm, which showed some redness. He attributed the injury to his practice of wrapping her tightly in a blanket, which he had been told helped babies get to sleep. Mr. Pratt testified that he had called an uncle who was an emergency medical technician and he told Mr. Pratt the injury was probably a sprain. The redness went away after three days and Jessica had no further problems.

The trial court, in its June 14, 1989, judgment order, found defendant guilty of the cruelty to children counts involving failure to seek medical care for Christina and Jessica, stating, in part, as follows:

“The statements of Bradley Pratt to the various witnesses amounts [sic] to an admission that the children were injured while in his care. The medical testimony indicated both children were victims of child abuse. Christina was taken to a doctor after Susan Pratt’s mother noticed something was wrong with her on February 27, 1987, and Jessica was taken to Cardinal Glennon on March 1, 1987, for an examination after a suspected child abuse to Christina.
Though there were several calls to Dr. Staten and Dr. Weber concerning the children by Susan Pratt, at no time did she mention any injuries to the children, nor were the children ever examined by the doctors at the request of the parents for any injuries to them.”

Section 53 of “An Act to revise the law in relation of criminal jurisprudence” (Ill. Rev. Stat. 1987, ch. 23, par. 2368) provides:

“Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice or other person under his legal control, shall be guilty of a Class 4 felony.”

In People v. Miller (1983), 116 Ill. App. 3d 361, 365, 452 N.E.2d 391, 394, the appellate court determined that the mental state which must be proved in order to sustain a conviction for cruelty to children is wilfulness. Thus, here, to be convicted of cruelty to children for failure to seek medical care, the evidence must have shown-beyond a reasonable doubt that defendant’s conduct “wilfully *** injure^] in health or limb.” Ill. Rev. Stat. 1987, ch. 23, par. 2368; see Miller, 116 Ill. App. 3d at 367, 452 N.E.2d at 395.

Section 4 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5) specifically states that conduct performed knowingly is performed wilfully within the meaning of a statute using the latter term. When an offense is defined in terms of a particular result, a person is said to act knowingly when he is “consciously aware” that his conduct is “practically certain” to cause the result. (Ill. Rev. Stat. 1987, ch. 38, par. 4—5(b); People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442, 445.) Here, however, although the trial court found that defendant had not had Christina examined for injuries, the court did not find, and the evidence does not show, that defendant had specific knowledge of any particular injuries. Defendant had reported Christina’s fall from the couch, her vomiting and the misshapenness of her head, and contrary to the trial court’s findings, it was defendant, and not her mother, who first noticed a problem with Christina on February 27,1987.

We agree with defendant that although Christina’s injuries were severe when seen at the hospital, they had occurred over a period of time during which Christina had been seen by many people, including the family physicians, who did not realize she had a severe problem. The evidence shows that defendant was conscientious in seeking medical care for Christina. Therefore, any failure to seek care for a specific injury was not wilful, where it was not proven that defendant had knowledge, or was “consciously aware,” that without additional medical treatment, injury was “practically certain” to occur.

As for defendant’s actions with regard to Jessica, it is similarly apparent from the evidence that the decision not to seek medical attention was not based on any wilful attempt to injure the child. Defendant sought the advice of both her mother and a medically trained relative when she noticed Jessica favoring her arm. Where these family members proffered the view that any soreness Jessica displayed was no more than a strain or sprain, it is not unreasonable for defendant to have believed that no medical attention was necessary.

However, even if the knowledge of Jessica’s condition was sufficient to establish a failure by defendant to seek medical care, we find there is a lack of evidence showing defendant injured the child’s health by not obtaining medical attention. According to the record, no treatment was required or appropriate when Jessica was taken to the hospital and there was no permanent injury. Therefore, no showing was made that the child’s health was adversely affected by the failure to seek medical attention earlier. Cf. People v. Berg (1988), 171 Ill. App. 3d 316, 525 N.E.2d 573 (conviction for endangering minor by failure to seek prompt medical treatment was not supported by evidence absent showing that medical treatment was required or that child’s health was endangered or adversely affected by failure to seek medical attention).

A reviewing court will not substitute its judgment for that of the trial court on questions of evidence and will not reverse a criminal conviction unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267; People v. Stokes (1989), 185 Ill. App. 3d 643, 659, 541 N.E.2d 1129, 1139.) However, when the record does not support the trial court’s factual determinations, a court of review must reverse. (Stokes, 185 Ill. App. 3d at 659, 541 N.E.2d at 1139.) Here, there is insufficient evidence to support critical elements of the State’s case. We therefore conclude defendant was not proved guilty of the charges beyond a reasonable doubt and consequently her conviction and sentence must be reversed.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed.

Reversed.

WELCH and HOWERTON, JJ., concur.


author: JUSTICE GREIMAN

text:
    TAMIKA ROBINSON, a Minor, by Janice Robinson, her Next Friend, et al., Plaintiffs-Appellees, v. OAK PARK AND RIVER FOREST HIGH SCHOOL, Board of Education, District 200, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—0790
    Opinion filed April 17, 1991.
    Rehearing denied May 22, 1991.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Allan E. Lapidus and Karen L. Taylor, of counsel), for appellants.
    Douglas W. Graham, of Chicago, for appellee Tamika Robinson.
    Armand L. Andry, of Oak Park, for appellee Nicole Jenkins.
   JUSTICE GREIMAN

delivered the opinion of the court:

The Oak Park and River Forest High School, Board of Education, District 200, Dr. Larry V. Walker and Dr. George A. Gustafson (hereinafter the Board) appeal from the entry of a temporary injunction restraining the Board from expelling plaintiffs, Tamika Robinson and Nicole Jenkins, freshmen students enrolled at the high school for the balance of the 1990-91 academic year.

Defendants’ appeal has been perfected pursuant to the provisions of Supreme Court Rule 307, which allows “an appeal *** to the Appellate Court from an interlocutory order of court granting *** an injunction.” (134 Ill. 2d R. 307(a).) In accordance with Supreme Court Rule 307(c), this court has ordered that no briefs need be filed.

We affirm the temporary injunction order entered by the circuit court and adopt much, but not all, of the thoughtful reasoning set out in its memoranda of opinion.

On January 7, 1991, the Board entered an order expelling both plaintiffs from the Board’s high school for the balance of the 1990-91 academic year. The Board had previously conducted hearings and provided notice to plaintiffs’ parents in accordance with the appropriate provisions of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 1—22.6).

Plaintiffs were apparently involved in a fight or altercation on December 10, 1990, a school day, between 4 p.m. and 4:30 p.m. near the school operated by the Board. Plaintiffs, two other students who have been similarly expelled and two nonstudents were involved with a fifth person, Tameko Warren, a student who was apparently the focal point of the attack.

Approximately 13 witnesses gave testimony at the hearing conducted by the Board’s hearing officer, and the record indicates that the facts are seriously in dispute among the various participants. One of the young women, not a plaintiff, Wanda Shelby, acknowledged that there had been bad words between Tameko Warren and her on a previous day and that some of the antagonism resulted from some competition for a boyfriend at a gospel sing in Wisconsin. Ms. Shelby admits that she began the altercation by first pushing Tameko Warren, this being corroborated by the statements of others who were present. There is testimony that plaintiff Tamika Robinson struck Ms. Warren in the melee although Ms. Robinson testifies that Ms. Warren had taken the first swing and that her action was limited to self-defense.

Another of the nonplaintiff students apparently picked up a stick to protect herself from a man who intervened in an attempt to stop the battle. She admitted striking Ms. Warren, but stated that she also did not strike the first blow.

Finally, Nicole Jenkins, according to all of the witnesses, had no previous problems or difficulties with Ms. Warren and, in fact, attempted to break up the incident. She testified that she did not strike Ms. Warren and Ms. Warren did not recall being struck by Ms. Jenkins.

Apparently, no injuries were sustained by the combatants since none were noted by the various witnesses.

On the day following the incident, school personnel became deeply involved in the investigation of the occurrence, and at the Board hearing, testimony was adduced from Dr. Larry V. Walker, assistant superintendent of pupil and special services, Dean Rich Matthies, Dean Kathi Kyrias, Dean Guida, Dean William Tracy, and Dean L.M. Corrigan.

On December 12, 1990, the plaintiffs were suspended and the hearing alluded to above was held on December 19, 1990. On January 7, 1991, the Board, meeting in camera, voted to impose the harshest available punishment on plaintiffs and expelled them for the remainder of the 1990-91 school year.

Section 10—22.6 of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 10 — 22.6) empowers a school board to “expel pupils guilty of gross disobedience or misconduct” without incurring any liability provided that the proper procedures set out in the statute have been observed.

In this regard, the Board has adopted certain Board policies, and Board Policy 5115 provides:

“[Gjross disobedience or misconduct, which may lead to suspension or expulsion of a student pursuant to the provisions of Section 10 — 22.6 of the School Code shall include any activity or behavior which might reasonably lead school authorities to forecast substantial disruption or material interference with school activities or which in fact is a substantial disruption or material interference with school activities and shall also include but is not limited to the following types of activities of behavior:
* * *
7. fighting or assaulting any person[.]
* * *
Action to suspend or expel may be taken whether the gross disobedience or misconduct occurs on school property, on a school bus, on the way to or from school, or at a school-related function.”

Similar language appears in a document entitled “Student Expulsion Procedures” issued by the Oak Park and River Forest High School although indicating Board policy 5114 rather than 5115.

The Board’s written policies have significantly varied the scope of “gross disobedience or misconduct” as set out in the statute. The definition provided by the Board would appear to limit its right to expel in the case at bar. Nothing in the record indicates that school authorities are able to forecast that these plaintiffs would substantially disrupt or materially interfere with school activities or that they, in fact, did substantially disrupt or materially interfere with school activities. They engaged in an altercation on the way home from school in the fourth month of their freshman year. No prior misconduct would have been the basis for such a forecast into the future. If a school board limits its powers granted by the statute, the board should be held to the limitations which it has imposed upon itself, such as the adoption of policy number 5115 (or 5114). However, we do not rely on this issue in affirming the trial court.

The maximum penalty that the Board may impose upon plaintiffs appears to be expulsion for the remainder of the school year. Under the act, a board is not authorized to expel a pupil for more than the remainder of the school year (1974 Ill. Att’y Gen. Op. 97). Accordingly, the Board here has elected to impose upon these young women the harshest penalty available. Plaintiffs assert, and the trial court below agreed, that the imposition of such a penalty is arbitrary, unreasonable and an abuse of the Board’s discretion.

School discipline is an area in which school officials have broad discretion. Illinois courts have been reluctant to overturn decisions to suspend or expel students. Burroughs v. Mortenson (1924), 312 Ill. 163; Clements v. Board of Education of Decatur Public School District No. 61 (1985), 133 Ill. App. 3d 531, 478 N.E.2d 1209; Donaldson v. Board of Education for Danville School District No. 118 (1981), 98 Ill. App. 3d 438, 424 N.E.2d 737; Smith v. Board of Education of Oak Park & River Forest Township High School (1913), 182 Ill. App. 342.

Defendant Board relies on the language of Donaldson:

“School discipline is an area which courts enter with great hesitation and reluctance — and rightly so. School officials are trained and paid to determine what form of punishment best addresses a particular student’s transgression. They are in a far better position than is a black-robed judge to decide what to do with a disobedient child at school.” Donaldson, 98 Ill. App. 3d at 439.

While school officials may be better trained and more experienced in handling disciplinary matters concerning students, they are not infallible.

The record here discloses that the Board consists of a theatrical director, a hospital administrator, an accountant, a businessman, a doctor and two lawyers. While the courts are reluctant to involve themselves with a board’s exercise of discretion, they have been willing to closely examine the facts of each case to determine the propriety of the court’s review of board action.

Donaldson dealt with a three-day expulsion of a seventh grader for fighting while the case before us deals with a January-through-June expulsion. The impact of a semester expulsion on two students cannot be compared with the three-day suspension, albeit at final week, meted out in Donaldson.

In Clements v. Board of Education of Decatur Public School District No. 61 (1985), 133 Ill. App. 3d 531, 478 N.E.2d 1209, suspension of a student from participation on a school athletic team after attendance at a beer party was an appropriate exercise of the Board’s power. Similarly, expulsion from school for the balance of the school year was appropriate for a student who carried a loaded .357 magnum pistol into the school cafeteria (Lusk v. Triad Community Unit No. 2 (1990), 194 Ill. App. 3d 426, 551 N.E.2d 660) or possessed look-alike caffeine pills (Wilson v. Collinsville Community Unit School District No. 10 (1983), 116 Ill. App. 3d 557, 451 N.E.2d 939).

It is ludicrous to imagine that the conduct of Nicole Jenkins and Tamika Robinson rises to the level of gun toting as in Lusk or carrying pills as in Wilson. Nor, as we have previously noted, can their six-month expulsion be compared to the three-day suspension in Donaldson.

The record reveals that Jenkins’ only involvement in the events of December 10, 1990, was to attempt to bring peace. Apparently, in Oak Park and River Forest High School, the peacemaker is not blessed. As to this student, there is nothing in the record upon which the Board based its decision except that she was in the wrong place at the wrong time. This is hardly a basis for drastic interruption of her academic career.

Even the testimony with respect to Tamika Robinson was confusing and conflicting. The evidence against her indicates that she did strike the victim, but did so in self-defense. Even though self-defense may not be an appropriate response or may be disbelieved by the Board, the imposition of the maximum penalty available would seem to be oppressive and unreasonable and an abuse of discretion where the evidence does not disclose gross misconduct and is likely to have an extreme and unfortunate impact upon this young woman. The record discloses that Tamika Robinson is a poor student and at the time of the disciplinary hearing had been “working hard to bring up her grades” and showing improvement. What will be the impact of the Board’s punishment on this young struggling student.

If the memoranda of opinion below has any fault, it is the notion that the punishment is too harsh because the facts are in conflict and difficult to determine. Once the trier of fact has made its determination as to the facts, the penalty or judgment should not be affected because of the original difficulties of the fact finder.

The affidavit of Bunny Carey, the president of the Board of Education of Oak Park and River Forest High School, reveals a good deal about the reasons for the imposition of this harsh penalty. President Carey states that Board members take a strong stand with respect to disciplinary problems and that at the meeting “Board members expressed their concern over the rising incidents of gang related activities and situations where a group would attack a lone individual.”

Nothing in the record indicates that these are gang-related activities. Instead, they appear to be a random incident of young people resolving an imagined injustice by resorting to violence.

Although officials have broad discretion in the area of student discipline and a strong interest in discouraging packs of students or the organization of gangs, the Board's discretion has limits. In reviewing the Board’s action to determine whether it has abused its discretion, the court must consider (1) the egregiousness of the student’s conduct; (2) the history or record of the student’s past conduct; (3) the likelihood that such conduct will affect the delivery of educational services to other children; (4) severity of the punishment; and (5) the interest of the child.

Considering all of these elements, the Board of Education of Oak Park and River Forest High School, District 200, has abused its discretion and the order providing for a temporary injunction restraining defendant Board from expelling the plaintiffs for the 1990-91 academic year is hereby affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER HARVEY, Defendant-Appellant.
    Fifth District
    No. 5—89—0500
    Opinion filed May 14, 1991.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Donna and Gary Decker were abducted in St. Louis on December 14, 1982. Gary Decker was killed in Missouri while his wife was raped and murdered in Illinois. Defendant, Walter Harvey, was arrested for these offenses on January 14, 1983. In April of 1983 defendant was convicted of Federal charges arising from the acts set forth above and was sentenced in June of 1983 to 120 years in prison. A St. Clair County, Illinois, grand jury returned an indictment on June 2, 1983, charging defendant with the rape and murder of Donna Decker. While these Illinois charges were pending, defendant was convicted and sentenced to death in Missouri for the murder of Gary Decker. The Illinois charges pending against defendant were dismissed on January 8, 1985. Defendant’s Missouri conviction was reversed on appeal, but he was retried, convicted, and sentenced to life in prison. However, this conviction was also overturned on appeal.

On July 20, 1987, defendant was recharged by St. Clair County, Illinois, authorities for the rape and murder of Donna Decker. The information alleged that the statute of limitations on the rape charge had been tolled since June 23, 1983, because defendant was not “usually and publicly a resident within this state.”

On July 18, 1989, defendant agreed to stipulate that if the case were called to trial, the State could prove that he was out of State for a period of time sufficient to toll the rape statute of limitations, and that it could also prove him guilty of rape and murder. In exchange for this stipulation the State would not seek the death penalty and would agree with the defendant’s sentencing recommendation of 80 years’ imprisonment for murder and 30 years’ imprisonment for rape to be served consecutively to each other, but concurrently with the Federal sentences. The trial court accepted the stipulation and the sentences. Defendant was given credit for time served against his sentence from December 24, 1987 (the date defendant was returned to Illinois after being recharged), to July 18, 1989 (the date of sentencing). Defendant raises the following issues for our review:

I. Whether the trial court erred in finding that the rape statute of limitations had not expired.

II. Whether the trial court erred in sentencing defendant to an extended term of 80 years’ imprisonment for murder.

III. Whether the trial court considered an improper aggravating factor when sentencing defendant to an extended term for murder.

IV. Whether the trial court erred in ordering defendant’s 80-year extended-term sentence of imprisonment for murder and his 30-year sentence of imprisonment for rape to be served consecutively.

V. Whether the trial court gave defendant the proper credit against his sentence for time served.

For the reasons which follow, we affirm.

Defendant initially contends that his rape conviction must be reversed because the three-year statute of limitations for rape (Ill. Rev. Stat. 1989, ch. 38, par. 3—5(b)) expired before the State recharged him on July 20, 1987. In support of this contention defendant argues that the statute of limitations tolling provision, section 3—7(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a)), is inapplicable because “a large part of his custody before Illinois took custody on December 24, 1987, was spent in the federal prison located in Marion, Illinois.” Defendant also asserts that section 3 — 7(a) did not toll the statute of limitations because his absence from Illinois was involuntary and because the State was fully aware of his location. The State contends that the statute of limitations for rape did not expire because defendant was not usually and publicly a resident within Illinois from June 23, 1983, to December 24,1987.

Section 3 — 7(a) provides as follows:

“§3 — 7. Periods Excluded from Limitation. The period within which a prosecution must be commenced does not include any period in which:
(a) The defendant is not usually and publicly residing within this State.” Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a).

Defendant’s contention that section 3 — 7(a) is inapplicable to this case because he was confined for a substantial period of time in Marion, Illinois, is without merit. Defendant testified at a motion hearing held on February 3, 1989, that he was confined at the St. Clair County jail from January 14, 1983, to June 23, 1983; that he was confined in Marion, Illinois, from September of 1984 through March of 1985; and that at all other times he was confined in either Kansas or -Missouri. Clearly defendant was out of Illinois for a period of time sufficient to toll the statute of limitations. In addition, we note that defendant stipulated that the State would produce witnesses to establish his out-of-State residence for a period of time sufficient to toll the statute of limitations.

Defendant next contends that, although he was physically out of Illinois for a period of time sufficient to toll the statute of limitations, the trial court erred in finding that the statute of limitations was tolled because his absence from the State was involuntary and because the State at all times knew defendant’s out-of-State location. We disagree. As noted above, the statute of limitations is tolled during any period in which “[t]he defendant is not usually and publicly residing within this State.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a).

In People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197, the supreme court was confronted with the question of whether the defendant was usually and publicly resident within this State during the time that he was confined in the Missouri penitentiary. The defendant claimed that the statute of limitations had expired because his absence from the State was not voluntary. The court interpreted section 5 of division IV of the Criminal Code (now Ill. Rev. Stat. 1989, ch. 38, par. 3—7(a)):

“This statute does not purport to toll the limitation only in case such absence is voluntary. Such construction would read into the statute words not used by the legislature, and which are contrary to the clear intention therein expressed. This would do violence to all recognized rules of construction. It would accomplish a result wholly foreign to the obvious purpose of the act. The language found in this section is too clear to admit of construction. The words must be given effect in accordance with their ordinary meaning.” Carman, 385 Ill. at 29, 52 N.E.2d at 199.

We conclude that the statute of limitations was tolled in this case. We decline to read into section 3 — 7(a) provisions which prevent the statute of limitations from being tolled if defendant’s absence from the State is involuntary and if the State is aware of the defendant’s out-of-State location. As the Carman court indicated, the language used in the statute is clear and direct. The statute is based solely upon defendant’s absence from the State. Carman, 385 Ill. at 29, 52 N.E.2d at 199.

Defendant next contends that the trial court erred in sentencing him to an extended-term sentence for murder. The trial court sentenced defendant to the extended term after finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—3.2(b)(2).) Defendant argues that the evidence does not support the trial court’s finding. We disagree.

“ ‘ “Heinous” is defined by Webster’s Third New International Dictionary (unabridged) as “hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal”; “brutal” includes “grossly ruthless,” “devoid of mercy or compassion: cruel and cold-blooded.” ’ ” (People v. McGee (1984), 121 Ill. App. 3d 1086, 1090, 460 N.E.2d 843, 846, quoting People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.)

The trial court’s sentencing decision is entitled to great deference and weight and will not be altered on review in the absence of an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.

Gary and Donna Decker were abducted at gunpoint by defendant and Raphael Clark on December 14, 1982, from a shopping center parking lot in St. Louis County. Donna Decker offered her purse to the men and pleaded with them not to hurt her. The Deckers were forced into their car. Shortly thereafter, Gary Decker was shot and killed. The Deckers were then driven to a field in East St. Louis where Donna Decker was subjected to repeated sexual assaults. Donna Decker was then shot four times in the face; twice in the left jaw and twice in the temple. The bodies of Donna and Gary Decker were left in the field.

These facts clearly reveal that the murder of Donna Decker was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Therefore, the trial court’s imposition of the extended term was not an abuse of discretion. See also People v. Wright (1987), 161 Ill. App. 3d 967, 514 N.E.2d 817.

Defendant next contends that his murder sentence must be vacated because the trial court considered an improper factor in imposing the extended-term sentence. One of the factors in aggravation found by the trial court was that “obviously the defendant’s conduct caused serious harm to another.”

While it was improper for the trial court to consider the fact that the murder caused serious harm to another, the reliance by the trial court on an improper factor in aggravation does not always require a reviewing court to remand the case for resentencing. (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338, 1340.) Remandment is not necessary if it can be determined from the record that the weight placed on an improperly considered aggravating factor is so insignificant that it did not lead to a greater sentence. Bourke, 96 Ill. 2d 327, 449 N.E.2d 1338.

As noted above, the facts of this case clearly reveal that Donna Decker’s murder was accompanied by exceptionally brutal or heinous circumstances indicative of wanton cruelty. After reviewing the record, we conclude that the trial court’s consideration of the improper factor did not result in defendant receiving a greater sentence than would otherwise have been imposed had the trial court not considered the improper factor.

Defendant next contends that the trial court erred in ordering the 80-year sentence of imprisonment for murder and the 30-year sentence of imprisonment for rape to be served consecutively. We disagree.

As noted earlier, absent an abuse of discretion, the sentence imposed by the trial court will not be altered on review (Perruquet, 68 Ill. 2d 149, 368 N.E.2d 882). The trial court sentenced defendant to consecutive terms pursuant to section 5—8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b)). That section provides:

“The court shall not impose a consecutive sentence *** unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(b).

In imposing the consecutive sentences, the trial court stated:

“The court does find that giving regard to the nature and circumstances of the offense and the history and character of the defendant that consecutive sentences are required to protect the public from further criminal conduct by this defendant. The basis for that was the particular brutal nature of the crime that was committed, the fact that the murder was committed in the commission of a felony, but more because of the particular brutal and heinous nature of the offense and the cruelty involved. And that would be the basis as to why I have extended or made the sentences run consecutive to each other.”

While defendant was only 20 years of age at the time he committed the offenses and had no criminal record prior to December 14, 1982, the date of the incident, the exceptionally brutal and heinous behavior which accompanied the murder indicates that the trial court did not abuse its discretion in ordering defendant’s sentences to be served consecutively.

In so holding, we reject defendant’s contention that the imposition of consecutive sentences was not necessary to protect the public because defendant is currently serving a 120-year Federal sentence of imprisonment. The consecutive sentences may well be beneficial to the public should defendant’s Federal sentence be modified or reduced. See People v. Freeman (1989), 182 Ill. App. 3d 731, 538 N.E.2d 681, appeal denied (1989), 127 Ill. 2d 626, 545 N.E.2d 119.

Defendant’s final contention is that he is entitled to additional credit against his sentence for time served from June 2, 1983 (the date Illinois first charged defendant with rape and murder), to January 8, 1985 (the date Illinois dismissed the charges against defendant with leave to reinstate), and from July 20, 1987 (the date defendant was recharged), to December 24, 1987 (the date defendant was brought back to Illinois). The trial court gave defendant credit for time served from December 24, 1987, to July 18, 1989 (the date of sentencing).

Defendant cites People ex rel. Bradley v. Davies (1974), 17 Ill. App. 3d 920, 309 N.E.2d 82, in support of his position. Defendant argues that he should receive credit for time served in foreign jurisdictions while charges were pending in Illinois. We find Bradley distinguishable under the facts of this case. In Bradley, the defendant was wanted in Illinois for an offense committed in Will County, Illinois. Defendant was apprehended in Indiana and confined there for 89 days. Defendant was granted credit for the time served in Indiana. No charges were ever filed against defendant in Indiana. She was simply held in Indiana until she could be returned to Illinois.

In the case before us, defendant was serving a 120-year Federal sentence of imprisonment, and the State of Missouri had charged him with murder. He was not confined by Missouri and Federal authorities simply because Illinois charges were pending against him.

Defendant also cites People v. Higgerson (1987), 157 Ill. App. 3d 564, 510 N.E.2d 574, in support of his position. We find Higgerson to be distinguishable. In Higgerson, only one county was involved. Here, three governments were involved: the United States, Missouri, and Illinois. While none of the following are directly on point, we find that the circumstances involved in these cases, People v. Wiseman (1990), 195 Ill. App. 3d 1062, 553 N.E.2d 46, appeal denied (1990), 133 Ill. 2d 571, 561 N.E.2d 705, People v. McLemore (1990), 203 Ill. App. 3d 1052, 561 N.E.2d 465, and People v. Clark (1989), 188 Ill. App. 3d 130, 544 N.E.2d 32, appeal denied (1989), 128 Ill. 2d 666, 548 N.E.2d 1072, are closer to the facts of this case than Davies and Higgerson. We conclude that defendant is not entitled to any additional credit for time served against his sentence.

The judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

HOWERTON and LEWIS, JJ., concur.