text:
      In re ESTATE OF MARTIN J. MALONE (James A. Pavela, Petitioner-Appellant, v. Florence M. Malone, as Independent Ex’r, Respondent-Appellee).
    First District (1st Division)
    No. 1—88—3522
    Opinion filed May 14, 1990.
    Charles F. Marino, of Chicago, for appellant.
    Querrey & Harrow, Ltd., of Chicago (Dennis A. Marks and Eric Samore, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner, James A. Pavela, appeals from an order entered by the circuit court granting summary judgment in favor of respondent Florence M. Malone, executor of the estate of Martin J. Malone, and dismissing petitioner’s cause of action with prejudice. Petitioner had sought: (1) a declaratory judgment that sections 18—3 and 18—12 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 110½, pars. 18—3, 18—12) violated the due process clause of the Federal and Illinois constitutions, and (2) leave to file his motion to suggest the death of Martin J. Malone and to substitute the independent executor of Malone’s estate as a defendant in a pending shareholders’ derivative action. On appeal, petitioner contends that: (1) he has standing to challenge the constitutionality of sections 18—3 and 18—12 of the Act, and (2) sections 18—3 and 18—12 of the Act violate his constitutional right to due process.

The record indicates that prior to his death, Martin J. Malone was president, director and majority shareholder of Creative Office Interiors, Inc. (Creative). Petitioner was a shareholder of Creative. On March 8, 1985, petitioner filed a stockholders’ derivative action on Creative’s behalf, alleging that Martin J. Malone and others had breached their fiduciary duty to Creative. On December 21, 1986, during the pendency of the derivative action, Malone died testate. Malone’s will named his wife, Florence (respondent), as independent executor and bequeathed Florence his entire estate.

Pursuant to section 18—3 of the Act, respondent published notice of Malone’s death on January 15, 22 and 29, 1987, in the Chicago Daily Law Bulletin. The notice indicated that letters of office had been issued on January 12, 1987, and that any claim against the estate had to be filed within six months of that date.

Thereafter, on March 12, 1987, Creative’s annual shareholders’ meeting was held. Present at the meeting were respondent, petitioner, their respective attorneys, and James Flynn, secretary of Creative. At the meeting, Flynn confirmed that respondent had been named independent executor of Malone’s estate, that Malone’s 1,500 shares of Creative stock had been transferred to respondent pursuant to Malone’s will and that the shares would be probated with his estate. Respondent, petitioner and two other individuals were then elected directors of Creative. Additional business was discussed which is not of record.

On August 26, 1987, petitioner filed his motion to suggest the death of Martin Malone and to substitute respondent, the independent executor of Malone’s estate, as a defendant in the shareholders’ derivative action. On November 4, 1987, petitioner’s motion was denied on the ground that the six-month statutory claim period set forth in section 18 — 12 of the Act had expired. Malone was then dismissed as a party defendant to the shareholders’ derivative action.

Thereafter, petitioner filed a motion for reconsideration, predicated on Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, which held that due process required that reasonably ascertainable creditors of an estate “be given ‘[njotice by mail or other means as certain to ensure actual notice.’ ” (485 U.S. at 491, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348, quoting Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 800, 77 L. Ed. 2d 180, 188, 103 S. Ct. 2706, 2712.) Petitioner argued that because he was a known claimant of Malone’s estate who had been given only publication notice, he had been denied due process and his original motion to substitute the independent executor should have been granted. In an order dated July 27, 1988, the trial court continued petitioner’s motion for reconsideration to enable petitioner to present the question regarding the constitutionality of sections 18—3 and 18—12 of the Act to the probate court.

On August 4, 1988, petitioner filed in the probate court a “verified petition for a declaratory judgment that sections 18—3 and 18—12 of the Probate Act violate the due process clause and for leave to file a claim herein.” In his petition, petitioner alleged the chronology of events up to that time, including an allegation that he had first learned of the statutory claim date in August 1987 when respondent responded to his motion to substitute. Petitioner further alleged that pursuant to Tulsa, sections 18—3 and 18—12 of the Act violate the due process provisions of the Federal and Illinois constitutions. Petitioner requested a declaration that sections 18—3 and 18—12 of the Act were unconstitutional and further requested leave to file a claim regarding the shareholders’ action. The probate court granted petitioner leave to file his petition. Respondent then moved for summary judgment, which was granted. In entering summary judgment, the trial court declined to rule on the issue of constitutionality and predicated its determination on the fact that petitioner and his attorney had had actual notice of Malone’s death within the six-month claim period and, therefore, lacked standing to bring a claim alleging the unconstitutionality of sections 18—3 and 18—12 of the Act. Petitioner appealed.

The purpose of summary judgment is to render expeditious judgment on questions of law after first deciding that no genuine issue as to any material fact exists between the parties. (Kusiciel v. La Salle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217.) In the present case, there is no dispute as to the facts underlying the cause of action. Rather, the sole issue before this court is whether, as a matter of law, petitioner had received actual notice of the claim period, thereby denying him standing to allege that the publication notice provisions of sections 18—3 and 18—12 of the Act are unconstitutional.

In Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 800, 77 L. Ed. 2d 180, 188, 103 S. Ct. 2706, 2712, the Supreme Court held that, “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” In determining whether notice given in a particular circumstance is sufficient to “ensure actual notice,” the Supreme Court has looked at four factors (actual notice factors): (1) whether the form of notice relies on mere chance to reach the attention of the other party (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 2d 865, 70 S. Ct. 652); (2) whether the form of notice is designed to attract the attention of the other party (Mennonite Board of Missions, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706); (3) whether the actual means of providing notice is reliable (Greene v. Lindsey (1982), 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874); and (4) whether the means of notice was reasonable when compared to other alternatives. Greene v. Lindsey, 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874.

In the present case, on March 12, 1987, three months before the expiration of the statutory claim period, petitioner and his attorney attended Creative’s annual shareholders’ meeting. At the meeting, James Flynn, Creative’s secretary, mentioned that respondent had been named independent executor of Malone’s estate and that Malone’s 1,500 shares of Creative stock had been transferred to respondent pursuant to Malone’s will and would be probated with the estate. Application of these facts to the actual notice factors indicates that petitioner had sufficient actual notice at the time of the meeting to file his motions. First, the information conveyed at the meeting did not rely on chance to bring notice to petitioner of Malone’s death, of respondent’s appointment as executor, and of the transfer of Malone’s shares. The meeting was an annual shareholders’ meeting, which petitioner, as a shareholder, attended. Second, the Secretary’s report was specifically prepared to be read to the shareholders and was intended to attract their attention. Third, the report was reliable and, fourth, it was a reasonable means by which to convey the information relevant to the shareholders. Although notice by mail could also have conveyed this information to petitioner, the Supreme Court has not held that mail notice is necessary in every situation where notice is required. The Court merely held that the form of the notice must be certain to ensure actual notice. Mullane, 339 U.S. 306, 94 L. Ed. 2d 865, 70 S. Ct. 652.

With respect to the content of the actual notice, petitioner argues that actual notice should contain the same information statutorily required of publication notice and that the extended claim period for delayed publication notice should apply to delayed actual notice. Without supporting authority, petitioner asserts that “there is no reason” for not extending the publication notice requirements to actual notice. Contrary to petitioner’s contention, there is a fundamental reason why the publication notice requirements of section 18—3 of the Act should not be extended to actual notice: the legislature expressly limited section 18—3 to publication and it is not within the province of this court to rewrite statutory law. Rather, this court’s function is to interpret the law. Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 476 N.E.2d 1378.

Moreover, petitioner’s argument that he did not receive sufficient information at the shareholders’ meeting to notify him of the duration of the statutory claim period is more akin to an ignorance of the law defense than a due process claim. It is axiomatic that everyone is presumed to know the law. (Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419.) This is particularly true of attorneys. Both petitioner and his attorney were present at the shareholders’ meeting when Creative’s secretary reported on Malone’s death, on respondent’s appointment as executor of Malone’s estate and on the transfer of Malone’s shares to respondent. Petitioner and petitioner’s attorney are presumed to know, at the very least, that they must substitute a party for the decedent in the pending claim and that they must do so pursuant to the relevant law. By merely checking the estate’s probate file for the date on which letters of office were issued or by inquiring of respondent as to when they were issued, petitioner would have learned when the statutory claim period had commenced to run. Instead, petitioner did nothing for more than five months. In our view, petitioner’s failure to timely file his motions is not the result of insufficiency of actual notice; it is the result of failure to timely act on the notice received. Therefore, we conclude that petitioner had sufficient actual notice at the time of the shareholders’ meeting to file his motion to suggest the death and his motion to substitute respondent in the pending suit within the statutory claim period.

Our decision that petitioner received sufficient actual notice within the statutory period to have timely filed his motions obviates the need to discuss the constitutionality of sections 18—3 and 18—12 of the Act, which relate to publication notice to know creditors, or to discuss the retroactive application of Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, which declared a deprivation of due process as to creditors who had not received actual notice. (See Missouri Highway & Transportation Comm’n v. Myers (Mo. 1990), 785 S.W.2d 70.) Our decision as to actual notice also renders Rose v. Kaszynski (1988), 178 Ill. App. 3d 266, 533 N.E.2d 73, relied upon by petitioner, distinguishable from the facts in the present case. In Rose, the trial court granted a creditor’s motion to join the executrix in a pending lawsuit even though the motion had not been filed until 10 months after letters of office were issued. In affirming the trial court’s decision, the appellate court found that defendant had not been given in actual notice of the death. Therefore, his due process rights had been violated. As stated, in the present case, both petitioner and his attorney had sufficient actual notice to file their motions three months before the expiration of the claim period.

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

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    LINDA J. SNODDY, Special Adm’x of the Estate of Larry Snoddy, Deceased, et al., Plaintiffs-Appellees, v. TEEPAK, INC., et al., Defendants-Appellees (PPG Industries, Inc., et al., Defendants-Appellants).
    First District (1st Division)
    No. 1—89—1049
    Opinion filed May 14, 1990.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Daniel W. McGrath and Bruce L. Carmen, of counsel), for appellant PPG Industries, Inc.
    Vedder, Price, Kaufman & -Kammholz, of Chicago (Richard C. Robin and Jeanne M. Cole, of counsel), for appellant Stauffer Chemical Company.
    Stevenson, Rusin & Friedman, Ltd., of Chicago, and Battle Fowler, of New York, New York (Stephen J. Friedman, Larry J. Chilton, Michael J. Malone, and Steven B. Carlin, of counsel), for appellee Teepak, Inc.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On November 27, 1984, Linda Snoddy et al. (plaintiffs) filed a complaint alleging battery against Teepak, Inc. (Teepak). Subsequently, plaintiffs filed four amended complaints, which added additional plaintiffs and strict liability claims against Stauffer Chemical Company (Stauffer) and PPG Industries (PPG). Plaintiffs alleged that Stauffer and PPG manufactured or supplied one of the chemicals, used in the Teepak factory, that allegedly injured plaintiffs.

In July 1988, plaintiffs and Teepak reached a settlement (the Plaintiff/Teepak Settlement). Teepak agreed to pay $191,000 and waive a $513,000 worker’s compensation lien, for a total consideration of $704,000. Teepak then served and set for hearing its motion for a good-faith finding as to the settlement. Meanwhile, Stauffer and PPG filed counterclaims seeking contribution from Teepak.

On July 25, 1988, Teepak delivered to the parties plaintiffs' signed releases and completed settlement contract lump sum petitions and orders, which were being submitted to the Industrial Commission in the related workers’ compensation dispute, also settled at this time. The releases included requisite language releasing Teepak and its management employees from liability; detailed “significant issues which pose substantial difficulties and obstacles to any recovery;” referred to Stauffer and PPG’s allegations for contribution; and recited that the parties represented by counsel have, in good faith, evaluated the settlement and relied on the advice of chosen counsel. These settlement documents also contained facts concerning dates of alleged exposure, plaintiffs’ ages, dependents, wages, the nature of the injuries, and plaintiffs’ work status. They specifically note that temporary compensation and medical costs have not been provided. They also state the amounts paid and the disability ratings.

On July 27, 1988, a hearing was held in which Stauffer and PPG argued that discovery was necessary to challenge the good faith of the Plaintiff/Teepak Settlement. After the court' stated that the standard for evaluating good faith was the absence of tortious conduct, a briefing schedule was set for the good faith motion.

After completing their briefs, Stauffer and PPG filed motions to compel outstanding discovery. In addition, PPG served notices of depositions on six Teepak employees and requested that each produce “any and all documents, objects, or tangible things which concern or relate to, the claims and causes of action filed by the several plaintiffs.” When the motions to compel were heard on January 27, 1989, the court inquired about the nature and amount of discovery sought by Stauffer and PPG. PPG’s attorney stated that “the depositions and documents were requested as ‘a start.’ After that we have some ability to come back and report to you as to what it is we are learning and what it is we think we need further.”

On February 10, 1989, the court denied Stauffer and PPG discovery on the good-faith issue, ruled that enough had been heard so that an evidentiary hearing was not necessary, and approved the settlement because there was no evidence introduced regarding the settling party’s tortious conduct. Accordingly, the court entered an order dismissing the counterclaims for contribution. Stauffer and PPG appeal.

Stauffer and PPG argue that the trial court erred in both determining that the Plaintiff/Teepak Settlement was entered into in good faith because there were outstanding discovery requests and by denying an evidentiary hearing. We disagree. Initially, the trial court properly presumed that the settlement was valid since there was a preliminary showing of good faith evidenced by Teepak’s release. (Bituminous Insurance Co. v. Ruppenstein (1986), 150 Ill. App. 3d 402, 501 N.E.2d 907.) In determining good faith, the court considered all of the circumstances surrounding the settlement (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122, 499 N.E.2d 1373), including the parties’ pleadings and the Plaintiff/Teepak Settlement, which set forth extensive facts. Once the preliminary showing had been made, the burden shifted to Stauffer and PPG to prove by clear and convincing evidence that the settlement was invalid by showing collusion or tortious or wrongful conduct. Jachera v. Blake-Lamb Funeral Homes (1989), 189 Ill. App. 3d 281, 288, 545 N.E.2d 314; Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 829, 537 N.E.2d 871, appeal denied (1989), 127 Ill. 2d 641, 545 N.E.2d 130; McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157.

Further, the trial court did not abuse its discretion by finding the settlement in good faith, even though there were outstanding discovery requests, and by denying an evidentiary hearing. The question of whether additional materials are necessary to make a finding of good faith is subject to the trial court’s discretion. (Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 832, 537 N.E.2d 871, appeal denied (1989), 127 Ill. 2d 641, 545 N.E.2d 130, citing Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 751-52, 52 N.E.2d 932, appeal denied (1988), 123 Ill. 2d 556, 535 N.E.2d 400.) The trial court refused to compel the requested Stauffer and PPG discovery because its scope was broad and not calculated to develop specific probative evidence, regarding the issue of fraud, collusion, or tortious conduct. The discovery requests were merely a “fishing expedition,” which would have been conducted with the hope of finding something relevant. Accordingly, there is no merit to defendants’ claim that the lack of discovery precludes a finding of good faith. (Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 830, 537 N.E.2d 871, appeal denied (1989), 127 Ill. 2d 641, 545 N.E.2d 130.) Additionally, the trial court did not abuse its discretion by denying an evidentiary hearing because it had heard sufficient evidence through the pretrial process. Accordingly, we find no error or abuse of discretion in the trial court’s action.

Stauffer and PPG then argue that the good-faith finding was improper because the court did not consider the equitable apportionment of liability as a factor in determining good faith. We disagree. The circuit court is free to consider any probable recovery or even the possibility of an unexpected result. (O’Connor v. Pinto Trucking Services, Inc. (1986), 149 Ill. App. 3d 911, 916, 501 N.E.2d 263.) Consequently, the amount of a settlement might legitimately be far different from a damage award which results from full litigation. (O’Connor v. Pinto Trucking, Inc. (1986), 149 Ill. App. 3d 911, 916, 501 N.E.2d 263.) Here, the settlement was reached prior to trial, when both liability and the amount of damages recoverable by the plaintiffs were uncertain. Accordingly, the trial court did not err in concluding that the settlement was not substantially disproportionate since damages and liability were speculative. There is no basis to find that the Plaintiff/ Teepak Settlement was not entered into in good faith.

Stauffer and PPG also argue that the good-faith finding does not protect their contribution rights as nonsettling defendants because the settlement fails to account for the relative fault of the parties. It appears that Stauffer and PPG contend that the settlement agreement should employ principles of comparative fault between joint tortfeasors, and the nonsettling defendants’ liability should be reduced by the settling defendant’s proportionate share of liability, rather than by the amount paid by the settling defendant. Stauffer and PPG’s argument is inconsistent with the plain terms of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), in which the Illinois legislature has manifested its intent to promote settlement by clearly stating that the nonsettling defendant’s amount shall be reduced by the settling defendant’s amount. (Ill. Rev. Stat. 1987, ch. 70, par. 302(c).) Furthermore, it has been held that the Act is intended to protect those who settle from the hardest bargainer, who might hold the other litigants hostage to its own intransigence. Jachera v. Blake-Lamb Funeral Homes (1989), 189 Ill. App. 3d 281, 287, 545 N.E.2d 314, citing Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 851, 498 N.E.2d 690.

Finally, Stauffer and PPG argue that they were denied due process by the dismissal of their contribution claim, contending that their cause of action for contribution is a protected property interest. Again, we disagree. Applied to Illinois through the fourteenth amendment, the due process clause of the fifth amendment protects the individual from State invasions of life, liberty or property. (Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983.) The protections of the fourteenth amendment apply to accrued causes of actions, but do not apply to unaccrued causes of actions. (Pitts v. Unarco Industries, Inc. (7th Cir. 1983), 712 F.2d 276, cert. denied (1983), 464 U.S. 1003, 78 L. Ed. 2d 698, 104 S. Ct. 509, citing Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148; Silver v. Silver (1929), 280 U.S. 117, 74 L. Ed. 221, 50 S. Ct. 57.) While it is true that contribution among joint tortfeasors is an inchoate right at the time of the injury (Rakowski v. Lucente (1984), 104 Ill. 2d 317, 321, 472 N.E.2d 791), the cause of action does not accrue until a tortfeasor pays more than his pro rata share. (Stephens v. McBride (1983), 97 Ill. 2d 515, 519, 455 N.E.2d 54.) Accordingly, Stauffer and PPG do not have a protected property interest upon which to base a due process claim, because they had an inchoate property interest which was abolished by the Plaintiff/Teepak Settlement before their rights accrued with respect thereto.

In conclusion, the trial court properly determined that the settlement was in good faith, the court did not abuse its discretion by denying Stauffer and PPG the requested discovery, and Stauffer and PPG were not denied due process.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE SCARIANO

text:
    FRANK MIRABELLA, Petitioner-Appellant, v. THE RETIREMENT BOARD OF THE COUNTY EMPLOYEES’ ANNUITY AND BENEFIT FUND OF COOK COUNTY et al., Respondents-Appellees.
    First District (2nd Division)
    No. 1—89—0940
    Opinion filed May 15, 1990.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry, Susan Condon, and Sean P. Fitzgerald, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

Petitioner charges that respondent Retirement Board of the County Employees’ Annuity and Benefit Fund of Cook County and respondent Fitzgerald, the Board’s director (collectively, the Board), improperly terminated his pension benefits after he was convicted of a felony in 1987, contending that the fact that he was employed by another local governmental entity prior to July 11, 1955, the applicable service entry date set by statute, places him beyond the reach of the forfeiture provision of the law. After failing in an administrative proceeding and in a review proceeding in the circuit court, petitioner brings this appeal. The issue presented to us is whether the Board properly held that the provisions of the felony forfeiture statute applied to petitioner.

Petitioner was employed by the Chicago Park District from September 1, 1954, until September 30, 1955. Approximately three years later, on August 20, 1958, he reentered the public sector by taking a job with the Cook County clerk’s office, which he held until December 31, 1958. After this second break from public employment, petitioner worked for the Cook County sheriff’s office from May 21, 1961, until January 1963. Petitioner’s next government job was with the City of Chicago from February 23, 1967, to April 8, 1970. He then rejoined the sheriff’s office from January 15,1971, until December 31,1986.

On March 10, 1983, petitioner was advised by the Park Employees’ Annuity and Benefit Fund that by repaying a refund made earlier by the Fund, he could acquire additional service credits toward his pension rights, and his initial service date would accordingly be established as of September 1, 1954. Petitioner repaid the necessary amount on or before September 25, 1984.

On May 8, 1987, petitioner was convicted of a felony in the United States District Court for the Northern District of Illinois. In a letter dated October 7, 1987, the Board advised petitioner that his application for pension benefits had been rejected and that his right to a pension had been forfeited pursuant to section 9—235 of the Pension Code (Ill. Rev. Stat. 1987, ch. 108½, par. 9—235), which applied to all individuals hired after July 11, 1955. After an administrative hearing was held on petitioner’s application for benefits, the Board affirmed its original determination.

The circuit court subsequently upheld the Board’s decision and denied petitioner’s request for administrative review, holding that the fact that petitioner did not first begin working for the county until 1958, well after the July 11, 1955, service entry date provided for in the statute, was dispositive. This appeal followed.

Opinion

As noted above, the Board’s finding that petitioner’s pension benefits were forfeited was predicated on section 9 — 235 of the Pension Code, which provides:

“None of the benefits provided in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as an employee.
This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued in this Article, nor to preclude the right to a refund.
All future entrants entering service after July 11, 1955, shall be deemed to have consented to the provisions of this section as a condition of coverage.” (Ill. Rev. Stat. 1987, ch. 108½, par. 9-235.)

The provision defining the terms relating to the county employees’ pension fund states, in pertinent part, that a “future entrant” is one who “becomes an employee on or after the effective date [July 1, 1955].” Ill. Rev. Stat. 1987, ch. 108½, par. 9—110(a).

Petitioner does not dispute that his felony conviction was service related; he contends, however, that the fact that he initially worked for the county in 1958 does not mean that he was a “future entrant” as of July 11, 1955, because his prior governmental employment should be considered. Without citing any case law in support, petitioner relies primarily on section 20—117 of the Retirement Systems Reciprocal Act (Reciprocity Act) (Ill. Rev. Stat. 1987, ch. 108½, par. 20—117), which states that pension credits under all participating systems shall be combined for purposes of determining whether an individual’s rights have become vested. He argues that this tacking of enrollments should rightfully occur in this case, and that he is thus in the same position as any individual who first began work in government service prior to July 11, 1955, and stayed with the same governmental entity until retirement. See, e.g., Borg v. Village of Schiller Park Police Pension Board (1984), 99 Ill. 2d 376, 459 N.E.2d 951; Arnold v. Board of Trustees of the County Employees’ Annuity & Benefit Fund (1981), 84 Ill. 2d 57, 417 N.E.2d 1026; Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 357 N.E.2d 582.

The Board responds that the legislature never intended that the Reciprocity Act should lead to such a result; that the purpose of the statute is to permit governmental employees to combine service for the express purpose of meeting the qualifying length of service requirements, and does not imply that combining service is permissible to avoid an application of section 9—235. Section 20—101 of the Reciprocity Act provides:

“There is established a plan for the continuity and preservation of pension credit, in accordance with the provisions hereof, in the case of employees transferring employment from one governmental unit to another. The purpose of this plan is to assure full and continuous pension credit for all service in public employment which is covered by a retirement system.” (Ill. Rev. Stat. 1987, ch. 108½, par. 20—101.)

The Board further argues that a number of different sections of the Pension Code not directly applicable to county employees define “future entrant” as one who either becomes employed by the appropriate governmental entity after the effective date for the first time, or who reenters service on or after the service date. (Ill. Rev. Stat. 1987, ch. 108½, pars. 5—111 (policemen’s annuity and benefit fund), 6—108 (firemen’s annuity and benefit fund), 8—115 (municipal employees).) These statutory provisions are relevant here because the use of the same words or phrases in different sections of a statute should be given a consistent meaning unless legislative intent to the contrary is clearly expressed. (Borg v. Village of Schiller Park Police Pension Board (1982), 111 Ill. App. 3d 653, 444 N.E.2d 631, aff’d (1984), 99 Ill. 2d 376, 459 N.E.2d 951.) Therefore, the Board concludes, the petitioner’s status as a “future entrant” should be governed by these provisions, and the fact that petitioner first worked for the county in 1958 controls the question of the applicability of section 9—235.

Petitioner overlooks the highly significant fact that he applied for and received a refund of his Park District pension contributions. For that reason the analysis of the court in People ex rel. Wright v. Board of Trustees of the Teachers’ Retirement System (1987), 157 Ill. App. 3d 573, 510 N.E.2d 1283, which has not been cited by either party, is directly on point. In that case, plaintiff began teaching in the Illinois public school system in 1953, at which time he automatically became a member of the Teachers Retirement System (TRS). After the 1955-56 school year, he left Illinois to teach in Indiana and received a refund of his contributions to the TRS. He returned to Illinois in 1962, reentered the TRS and remained a member until 1982, at which time he accepted employment with the Federal government. He subsequently retired and began receiving pension benefits from the TRS in 1982, after paying an additional $6,093.97 to reestablish his withdrawn service credit for the schools years 1953-54 and 1955-56 and to receive credit for the years spent in the Indiana school system. His pension benefits were later terminated pursuant to section 16—199 (Ill. Rev. Stat. 1985, ch. 108½, par. 16—199), a forfeiture provision comparable to the one applicable in this case.

The court agreed with the TRS’s argument that by applying for and accepting a refund of contributions in 1956, plaintiff terminated his membership in the Illinois plan and forfeited any pension benefits he may have acquired as of that time. Consequently, when he reentered the TRS in 1962, his status was no different from that of any newly hired individual. The court also rejected plaintiff’s argument that his refunding $6,000 to the TRS in order to reestablish his 1953-56 credits served to reinstate all rights which he had previously acquired.

In this case, petitioner ceased to be employed by the Park District on September 30, 1955, and did not resume government service again until August 20, 1958. Later, exactly as in Wright, petitioner received a refund from the Park Employees’ Annuity and Benefit Fund. His 1958 employment therefore did not restore any right to benefits which may have accrued to him as a result of his earlier employment, a conclusion that is not affected by his later repayment of his contribution refund.

For the above and foregoing reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY LEWIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—0959
    Opinion filed May 16, 1990.
    Rehearing denied July 6, 1990.

      Michael J. Pelletier, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Darlene White, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant-appellant Rodney Lewis (Lewis) was found guilty of aggravated battery after a jury trial and sentenced to a nine-year term of imprisonment. On appeal, Lewis argues that (1) the prosecutor’s misstatements of law, references to his aliases and other improper remarks deprived him of a fair trial; and (2) the trial court abused its discretion when it imposed the nine-year sentence.

The events which led to the aggravated battery conviction occurred on July 17, 1985. Defendant testified that the victim, Humphrey, approached him and began arguing. Defendant withdrew from the encounter and went into a building. According to defendant, when he returned, Humphrey approached him in an aggressive, excited manner and threatened him with bodily harm. Defendant testified that after Humphrey “swung at him” with an object, he stabbed Humphrey a single time in the chest. Contrastingly, Humphrey testified that defendant came out of the building, approached him, stated that he did not like him and stabbed him.

Assistant State’s Attorney Richard Pullano testified that during an interview with Irene Cooper, an occurrence witness, she stated that defendant exited the apartment, walked quickly toward Humphrey, brought his hand from behind his back, lunged at and stabbed Humphrey.

Defendant surrendered himself to the police. After being advised of his Miranda rights, he related that following the argument, he went to his apartment, put his switchblade in his back pocket and returned outside. Defendant related that once outside, he argued with Humphrey and lunged at him, stabbing him in the chest. During the interview, defendant informed Pullano that Humphrey did not hit or swing at him, and that he was not taking any chances and “wasn’t waiting.”

The trial court granted defendant’s motion in limine precluding the introduction of defendant’s aliases, except in conjunction with a previous conviction. The parties stipulated that the defendant was the same man who was convicted in case number 80—3148 under the name(s) of James Miller and Arnold Garrnet.

Defendant argues that the prosecutor’s misstatements of law deprived him of a fair trial. Specifically, he argues that the prosecutor misstated the law of self-defense, with respect to the requisite mental state, and by stating that Lewis could only use force equal to the force used against him. The prosecutor’s comments were responsive to the following closing argument comments of defense counsel:

“This man is presumed innocent until he’s proven guilty beyond a reasonable doubt. He’s not required to put on a defense. It’s up to the prosecution to prove him guilty, beyond a reasonable doubt. In this case, he did put on a defense. If you find some evidence he put on a defense of self-defense [sic], if you find there was evidence that he subjectively believed that he was in danger, if you find from the testimony here, there was evidence that he, in his mind, believed he was in danger, then it’s up to the State also to prove, beyond a reasonable doubt that this was not self-defense. ***
There was no reason for Leonard to sit there with his finger in Rodney’s face to tel [sic] him he was going to beat him up. There is no reason for that. That’s unfortunate, but that’s why the man got injured.
And, I believe you will find that the man had a reason. Mr. Lewis had a reason to defend himself. Under the law of Illinois, if one subjectively believes it is necessary to use even deadly force harm — .
PROSECUTION: Objection, that’s not the law. Only from great bodily harm.
DEFENSE: From great bodily harm, even if it’s subjective belief [sic], Mr. Lewis, he’s justified in using that force reasonably.”

The prosecutor argued the following in closing:

“As to what the law is and I want to explain a few things that I believe he will instruct you on. Do not be misled. Nobody is entitled to stab somebody merely because they think that maybe somebody is about to do them harm.
DEFENSE: Objection, your Honor.
THE COURT: Court will instruct the jury as to the law.
PROSECUTOR: Thank you, Judge. The best that can be said for that man sitting over there is that maybe he thought because he was in an argument that the other guy might have started pushing or shoving or hitting, might [sic]. That’s not good enough. You are being asked to decide the following questions. Given that there’s been a stabbing, can anybody come into court and merely say because they fell [sic] like it or they think it will do some that’s some good [sic]. [0]kay, I thought something was going to happen to me and gets off for the stabbing [sic]. No. That is the answer, clear and simply [sic].
There is a lot of common sense behind the law. If somebody pushed you, you can push back, you can use the kind of force that is actually used on you.
DEFENSE: Objection, your Honor.
THE COURT: Court will instruct the jury as to the law.
PROSECUTOR: Thank you, Judge. And, if somebody used a deadly weapon on you, you are entitled to use a deadly weapon back. At that point, to defend yourself [sic],
DEFENSE: Court will instruct the jury.
PROSECUTOR: But, you are not entitled to merely claim that as the defendant said, I wasn’t going to wait to see if something might happen. You are not entitled to use deadly force on somebody sometime with some of the facts in this case.
Let’s deal with some of the facts in this case. First of all, it is clear from the medical reports, Leonard was stabbed once in [sic] cut his intestine, a number of times. You saw his injuries. There was a — it was a serious injury and it doesn’t matter whether or not that was a switchblade or a folding knife. He had a colostomy. [H]e had a life threatening injury. He had serious bodily harm. There can be no question about that. I think it’s important, I don’t even think you should by the facts or the [sic] that this bully — .
DEFENSE: Objection, Judge.
THE COURT: Overruled.
PROSECUTOR: That this thu[g], who carried a knife with him — .
DEFENSE: Objection, your Honor.
THE COURT: Be sustained [sic].
PROSECUTOR: *** He’s the one who returns to an argument that was over, with a knife.
* * *
In a few minutes, his Honor, Judge Palmer is going to instruct you on the law. You will get a copy of the instructions that he has to give you. I want to call your attention to a new — one particular instruction. I am going to go over it once. I will read it quickly and then I am going to stress the important points. I believe he will tell you that a person is justified — .
DEFENSE: Objection, your Honor.
PROSECUTOR: In the use of force when and to the extent that he reasonably believes — .
THE COURT: Overruled.
PROSECUTOR: Is necessary to defend himself against the eminent use of force.
DEFENSE: Objection.
THE COURT: What is the basis of the objection?
DEFENSE: That the rule is that the jury [sic] instructs the jury on the law.
THE COURT: He may read the instructions to the jury as to [sic] a basis for whatever he’s going to explain after that time. Overruled.
PROSECUTOR: Further, the judge will instruct you that a person is justified in the use of force which is intended to cause the death or great bodily harm, only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Now, you weren’t supposed to digest it at first reading or first hearing. We go to law school three years and it takes time to digest it, so let me go over the reason — real important parts. A person is justified in the use of force when he believes that it’s necessary, very key word, necessary.
DEFENSE: Objection.
THE COURT: Sustained, at this point.
PROSECUTOR: Person is entitled. What this means is it can’t be maybe in his own mind. It’s got to be necessary.
DEFENSE: Objection, your Honor.
PROSECUTOR: To defend himself.
THE COURT: Overruled, at this point.
PROSECUTOR: Against the imminent use of unlawful force. During the first argument, maybe the possibility of force was imminent, because it’s about to happen, right then, and there. [Tjhat’s what imminent means. But, when you talk about outside with a knife, and start the situation all over again, [sic] you are creating the situation. You are not entitled to start a new argument. The force against you when you are sitting upstairs and there is no argument, is not imminent at all. There is no force. Next, person is justified in the use of major force, which will kill or seriously harm somebody.
DEFENSE: Objection.
THE COURT: I will sustain the objection for further reading of the law. You may explain how the facts fit into the instructions that I will give.
PROSECUTOR: We just talked about when you can use a little bit of force, okay. When can you use a lot of force? Well, the concept again, is common sense you can only use a lot of force when a lot of force is being used on you. Very clear, no weapon was being used on the defendant.
DEFENSE: Objection, Judge.
THE COURT: Jury’s heard the testimony and the evidence [sic].
PROSECUTOR: Thank you, Judge. You are not entitled to stab somebody because you think somebody may merely hit you. Leonard Humphrey was in intensive care and .had to have t[wo] operations, was seriously wounded.
DEFENSE: Objection.
THE COURT: Overruled.
PROSECUTOR: Because of the acts of this man, the unjustified, illegal acts of that man. He wasn’t entitled to use any force, let alone deadly force, and he wasn’t entitled to go inside and come back and start things again.
If you feel that somebody can go inside get mad about an argument and come out when there, is no confrontation and stab somebody, if that’s the k[in]d of society that you think we should have, find him not guilty and give somebody — .
DEFENSE: Objection.
THE COURT: Overruled.
PROSECUTION: And, give somebody license to do that.
DEFENSE: Objection, your Honor.
THE COURT: Overruled.
PROSECUTOR: Should have [sic] to follow the laws that somebody is allowed to defend himself when the law says so, but is not allowed to defend themselves in this kind of manner when the law says he can’t.
DEFENSE: Objection, your Honor.
THE COURT: Overruled.
PROSECUTION: Then, find the defendant guilty. Thank you.”

The court gave the jury the following instruction: “A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force. However, a person is justified in the use of force which is intended of [sic] likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” Illinois Pattern Jury Instructions, Criminal, No. 24.06 (1968).

In closing argument, a prosecutor is accorded wide latitude and the scope of permissible argument is within the sound discretion of the trial judge. (People v. Lasley (1987), 158 Ill. App. 3d 614, 625, 511 N.E.2d 661, 670.) Complained-of remarks must be examined in the context of both the State’s and the defense’s arguments; but, all remarks made in the closing argument must be based upon the evidence presented or reasonable inferences thereof. (People v. Cisewski (1987), 118 Ill. 2d 163, 175-76, 514 N.E.2d 970, 976.) The test for determining whether the remarks of the prosecutor in closing argument constitute reversible error is whether those comments were such that, without their having been made, the jury might have reached a different result. People v. Estes (1984), 127 Ill. App. 3d 642, 650, 469 N.E.2d 275, 282.

Whether the degree of force used in self-defense was justified is a question of fact for the jury. (People v. Felella (1989), 131 Ill. 2d 525, 533, 546 N.E.2d 492, 495.) To establish a defense of self-defense, the defendant must show that unlawful force was threatened against him, he was not the aggressor, he believed the danger of harm was imminent, force was necessary to avert the danger and that the amount of force used was necessary. (People v. Woods (1980), 81 Ill. 2d 537, 542-44, 410 N.E.2d 866, 868-69.) Here the jury considered corroborative evidence that the defendant left the scene, went to his apartment, returned and stabbed the victim. Where the defendant had withdrawn from the encounter, reached a place of safety, and later re-initiated a fight, the right to defend himself vanished when he was able to escape. (People v. Flax (1986), 147 Ill. App. 3d 943, 954, 498 N.E.2d 667, 674.) Having reviewed the prosecutor’s statements in context, the remarks relative to self-defense do not rise to the level of reversible error, given the court’s admonishments, the jury instruction and the evidence.

Defendant argues that he was deprived of a fair trial based upon the assistant State’s Attorney’s prejudicial references to the defendant as a bully and thug in the aforementioned closing argument excerpt. The court sustained the objection to the characterization of the defendant as a thug, and thereby cured the error. The characterization of defendant as a bully was based upon the evidence presented by the State and does not constitute error. (People v. Moore (1988), 172 Ill. App. 3d 325, 335, 526 N.E.2d 591, 598.) While we do not condone the prosecution’s use of derogatory references, we do not find reversible error based upon these remarks. People v. Berry (1960), 18 Ill. 2d 453, 457-58, 165 N.E.2d 257, 259.

Defendant asserts that other comments made during closing argument were prejudicial. The remarks were as follows:

“PROSECUTOR: As you know, Rodney Lewis is charged with aggravated battery. He is charged with aggravated battery by the People of the State of Illinois. Leonard Humphrey is not charged with aggravated battery. The People of the State of Illinois have brought these charges because what Rodney Lewis did on June 17, 1985 is against the laws of the State of Illinois. And, what Rodney Lewis did on June 17, 1985, didn’t just affect Leonard Humphey, it affected each and every one of you. *** How long was the line to get into this building? *** That line was because of Rodney Lewis and people like Rodney Lewis who walk the streets of Chicago.
DEFENSE: I am going to object to this whole line of questioning [sic].
THE COURT: Overruled.
PROSECUTION: People like Rodney Lewis, who carry knives [sic]. They didn’t go through your purses to see how much money you had, ladies and gentlemen. They checked you for weapons. So, what you have been listening to all day long is something that very much affects each of you. You are not just here because some man got a colostomy when he was stabbed. *** I hope that each one of you has done your duty throughout this entire day and listened to the testimony. I hope that you have not spent your time as the defendant has spent his time throughout this day.”

Also over objection, the prosecution stated that the victim had never been arrested and referred to “the man of 1,000 names, excuse me, 10 names,” when speaking of the defendant.

In addition, during cross-examination, defendant was questioned about the names he had used, and the following questions:

“PROSECUTION: You testified you have been injured a lot of — injured in a lot of fights, is that correct?
DEFENSE: Objection, wasn’t the testimony.
THE COURT: Overruled, at this time.
PROSECUTION: You testified you have been—
A. I didn’t testify I was in a lot of fights.
* * *
A. I been [sic] injured twice.
Q. Were those gang related injuries?
A. No.”

Improper argument justifies reversal only when the statements result in substantial prejudice or serve no purpose other than to inflame the jury. (People v. Terry (1984), 99 Ill. 2d 508, 517, 460 N.E.2d 746, 750.) Similarly, the latitude to be allowed on cross-examination is a matter within the sound discretion of the trial court, and a reviewing court should not interfere unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. People v. Collins (1985), 106 Ill. 2d 237, 269, 478 N.E.2d 267, 281.

While some of the complained-of comments were not properly preserved for review, we examined all of the remarks and find that they constitute either improper argument or questioning. The attempts to inject irrelevant or distracting matter, however, did not sway the jurors from the fundamental issue before them concerning which substantial evidence had been submitted. We find that given the substantial evidence in the record, the jury would not have reached a different result had the prosecutor not made the complained-of remarks. Defendant did not suffer substantial prejudice and was not deprived of his right to a fair and impartial trial because the cumulative effect of the improper comments did not constitute a material factor in his conviction.

The trial court sentenced defendant to an extended-term sentence of nine years based upon defendant’s prior felony conviction. Defendant argues that the trial court’s imposition of the nine-year sentence, one year less than the maximum term, was an abuse of discretion given his background and the circumstances of the crime. A reviewing court should not alter the trial court’s determination of an appropriate sentence absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) Such relief is warranted if the trial court failed to extend proper consideration to pertinent factors, such as rehabilitation. (People v. Rickard, (1981), 99 Ill. App. 3d 914, 919, 425 N.E.2d 1317, 1320.) A sentence within statutory guidelines which is alleged to be excessive, however, will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense. People v. Cabrera (1987), 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716.

At the time of sentencing, defendant was 26 years of age. Seven years prior to sentencing, defendant was convicted of robbery and sentenced to a three-year period of probation. Defendant argues that given his employment history and lack of a substantial criminal record, the nine-year sentence was an abuse of discretion. Given the nature of the crime, and his criminal background, we disagree.

Accordingly, the conviction and sentence of the trial court are affirmed.

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


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY FOSTER, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—1124
    Opinion filed May 16, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Toi Denise Houston, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant Tony Foster was convicted in a bench trial of the murders of Alanzia Dixon and Margaret Williams and the armed robbery of Dixon. Following his convictions, defendant was sentenced to life in prison for the murders and 30 years for the armed robbery. Defendant appeals his convictions and sentences on several grounds.

On September 14, 1983, the bodies of Williams and Dixon were found in a gold 1977 Oldsmobile located at 7144 South Prairie Avenue in Chicago. Both had been shot. Later that day, defendant was arrested and charged with murder and armed robbery in connection with the shootings.

At defendant’s trial, Gerald Petway and Michael Pouncy, residents of the 7100 block of South Prairie, testified on behalf of the State. Petway testified that at approximately 12:45 a.m. on September 14, 1983, he was sitting in a car outside of his home at 7128 South Prairie when a car came to a screeching halt a short distance behind him. Petway heard three or four shots and, looking out of the back window of his car, saw two bodies slumped against the dashboard of the second car. Petway then observed an individual in tan clothing who exited the victims’ car from the driver’s side and ran south on Prairie. Petway also observed a second individual dressed in a blue jogging suit who exited from the passenger side of the car.

The second individual, identified as defendant, ran across to the east side of the street and hid in some bushes. Petway then got out of his car and hid behind some bushes on the west side of the street near his house. While hiding in the bushes, Petway observed defendant leave his hiding place and return to the victims’ car. Defendant reached into the passenger side of the car and pushed over one of the victims. Defendant then ran back into the bushes and another car, a green Maverick, drove up and stopped next to the victims’ car. Defendant left the bushes and a tall, heavy man got out of the Maverick and walked over to defendant. Petway testified that there was an argument between the two and that during the argument a statement was made that the wrong guy had been shot.

Subsequently, defendant returned to the victims’ car and entered the driver’s side, where he remained for three or four minutes. Defendant then went to the trunk of the car, opened it, and went inside. The green car then drove off, and defendant returned to the bushes. A few minutes later defendant again left the bushes and returned to the victims’ car. Defendant stood next to the car for several minutes and then ran south down Prairie.

Michael Pouncy testified that in September 1983, he lived at 7133 South Prairie. Pouncy testified that around 12:30 a.m. on September 14, he had a brief conversation with his neighbor, Gerald Petway, who was sitting in his car. After speaking to Petway, Pouncy went home and laid down on a couch near a second-floor window. Pouncy testified that a short time later, he heard two gunshots. Pouncy looked out of the window and saw Petway hiding in the bushes. Pouncy also saw an individual dressed in a blue jogging suit exiting a gold car. This individual ran from the car and hid in some bushes on the east side of the street. Pouncy testified that when he looked out of the window again a short time later, he saw the individual in the blue jogging suit and another man in tan clothing going south on Prairie.

Officer Richard Popovits of the Chicago police department also was called as a witness on behalf of the State. Popovits testified that in the early morning hours of September 14, 1983, he was called to the 7100 block of South Prairie, where he observed the bodies of Dixon and Williams in a gold 1977 Oldsmobile. Popovits testified that a notebook along with $70 in cash was recovered from Dixon’s body and four .380 automatic shell casings were recovered from the car. Popovits also testified that the car in which the bodies were found was registered to Leroy Dixon and that after speaking with Leroy Dixon, he went to a motel located at 4905 South Michigan, where he arrested defendant and recovered $250 in cash from defendant’s room.

Popovits also testified that there was writing on both the money recovered from Dixon’s body and the money recovered from defendant’s motel room. One of the bills recovered from Dixon’s body was marked “G.E. 160” and one of the bills recovered from the motel room was marked “L.A. 85.” Popovits further testified that several of the bills recovered from the motel room contained red stains. It was later stipulated that these stains were human blood.

Also called as witnesses on behalf of the State were Kevin Bass and Larry Johnson. Both testified that in 1983 they sold drugs for Alanzia Dixon and his brother Leroy. Bass testified that he worked as a “runner” for the Dixons and that when the Dixons collected money from a runner for drugs sold, the runner’s initials would be written on the money. Bass identified the notebook recovered from Alanzia’s body as having been used by Alanzia to record the amount of money paid by the runners.

Bass further testified that on September 13 at approximately 11:30, he was waiting at the intersection of 51st Street and Indiana when he saw Alanzia Dixon and Margaret Williams drive up. Dixon got out of the car, and as he approached Bass, defendant drove up in another car and got out. Bass testified that “Alanzia Dixon told [defendant] that he wanted that money” and that defendant replied “not if I see you first.” Bass stated that he noticed a bulge in defendant’s jacket near the waist band of his pants and that defendant reached for the bulge while talking to Dixon. Bass testified that he then warned Dixon that there was a police car nearby, and Dixon and defendant both left the area.

Larry Johnson testified that he saw Alanzia Dixon several times on September 13. Johnson testified that he first saw Dixon around 8 p.m. and that Dixon, who was alone, was driving the automobile in which his body later was found. Johnson testified that he obtained forty $10 bags of heroin from Dixon and gave him $85 in cash. Dixon counted the money and made an entry in a notebook and gave it to Johnson. Johnson wrote “LA 85” in the notebook and on one of the bills he gave to Dixon.

Johnson next saw Dixon at approximately 10 p.m. Dixon was driving the same car, but this time he was accompanied by Williams. Johnson gave Dixon $115 in cash and again the amount was written in Dixon’s notebook and the money initialed.

Johnson last saw Dixon, shortly after midnight, near the intersection of 51st Street and Prairie. Johnson testified that Williams was in the front passenger seat of Dixon’s car and defendant, dressed in a blue jogging suit, was in the back. Johnson also testified that another individual, dressed in tan clothing, was in the back seat of the car with defendant.

Defendant called no witnesses in his behalf. However, after the State rested, the defense presented a stipulation that none of the fingerprints recovered from the victims’ car matched those of defendant.

Subsequently, the trial court found defendant guilty of the murders of Williams and Dixon. Noting that the evidence was circumstantial and that it had not been shown who fired the fatal shots, the court nonetheless found that defendant had been proven guilty beyond a reasonable doubt. The court also found that defendant was guilty of the armed robbery of Dixon but not guilty of the armed robbery of Williams.

At defendant’s sentencing hearing the State requested that the court impose the death penalty based on defendant’s commission of a double murder. The court found that defendant was eligible for the death penalty; however, the court declined to impose a sentence of death because of its belief that mitigating factors were present. The court instead imposed a sentence of natural life in prison. In imposing the life sentence, the court stated that it was obligated to do so under section 5—8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1) and that under the circumstances the sentence was appropriate. Defendant also was sentenced to 30 years in prison for the armed robbery.

Defendant’s first arguments on appeal concern the sufficiency of the State’s evidence. Defendant argues that the State failed to establish that he was accountable for the murders or that he was guilty of armed robbery.

In arguing that the State failed to establish that he was accountable for the murders, defendant claims that the State’s evidence showed only that he was present at the crime scene and that he fled after the shooting. Defendant contends that this was not adequate proof of accountability. While we agree that something more than mere presence and subsequent flight must be shown before a person may be held accountable for a crime, we find that the State’s evidence was sufficient to establish defendant’s accountability.

Under Illinois law, a person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense. Ill. Rev. Stat. 1983, ,ch. 38, par. 5—2(c).

The intent to promote or facilitate a crime can be shown by evidence that the defendant shared the criminal intent of the principal or by evidence that there was a common design or community of unlawful purpose. (People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979; People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150.) Absent other circumstances indicating a common design, presence at the scene and flight therefrom do not constitute prima facie evidence of accountability; however, they do constitute circumstantial evidence which may tend to prove and establish a defendant’s guilt. People v. Morris (1977), 49 Ill. App. 3d 369, 364 N.E.2d 377.

Proof of community of purpose or common design may be drawn from the circumstances surrounding the commission of the act. (People v. Bell (1981), 96 Ill. App. 3d 857, 421 N.E.2d 1351; People v. Morris (1977), 49 Ill. App. 3d 369, 364 N.E.2d 377.) Although accountability requires that the assistance of an accused occur prior to or during the commission of the act, such assistance may be inferred from activities occurring after the offense. (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150; People v. Clifford (1976), 38 Ill. App. 3d 915, 349 N.E.2d 922.) The factors a court will consider in determining the existence of a common design include the defendant’s continued association with the perpetrator after the act and the failure to report the crime. (People v. Watts (1988), 170 Ill. App. 3d 815, 525 N.E.2d 233; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.) A trier of fact’s conclusion that a defendant is legally accountable for a criminal act will not be set aside on review unless the evidence is so improbable, unsatisfactory, or unreasonable that a reasonable doubt of the defendant’s guilt exists. People v. Ruckholdt (1984), 122 Ill. App. 3d 7, 460 N.E.2d 847; People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209.

In the present case, the State established through the testimony of Kevin Bass and Larry Johnson that defendant and one of the victims argued a short time before the shootings and that marked money found in defendant’s motel room had been given to Dixon shortly before the shootings. Larry Johnson’s testimony also established that 45 minutes before the shooting, defendant, who was dressed in a blue jogging suit, and an individual dressed in tan-colored clothing were in the back seat of the victims’ car. Gerald Petway testified that he saw defendant and the individual dressed in tan flee the victims’ car immediately after the shootings, that the individual dressed in tan ran to the south, and that after returning to the car several times defendant also fled in a southerly direction. Michael Pouncy testified that immediately after the shootings he observed an individual dressed in a blue jogging suit exiting the victims’ car and that later he saw that individual and a second individual dressed in tan going south down Prairie.

We believe this evidence was sufficient to establish a common design and a community of unlawful purpose between defendant and the second individual. Accordingly, we find no reason to disturb the trial court’s determination that defendant was accountable for the shootings.

Defendant also challenges his conviction for the armed robbery of Alanzia Dixon. Defendant argues that his conviction for armed robbery must be reversed because the State failed to prove that he was armed with a dangerous weapon or that the taking of property from Dixon was accompanied by force or the threat of force. Defendant points out that the State asserted at trial that defendant took money from Dixon’s body when defendant returned to the car after the shootings. Defendant contends that because Gerald Petway testified that he did not see a weapon in defendant’s hands when defendant returned to the car and because at that time Dixon was either dead or so seriously wounded that he offered no resistance, there was no forcible seizure of Dixon’s property. This argument is without merit.

A person commits robbery under Illinois law when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1983, ch. 38, par. 18—1.) A person commits armed robbery when he violates section 18—1 of the Criminal Code of 1961 while armed with a dangerous weapon. Ill. Rev. Stat. 1983, ch. 38, par. 18—2.

To sustain a conviction for armed robbery, the force or threat of force must precede or be contemporaneous with the taking of the property, i.e., the evidence must show that the force employed was the means used to take the property. (People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285; People v. Heller (1971), 131 Ill. App. 2d 799, 267 N.E.2d 685.) The use of a dangerous weapon at any point in a robbery will constitute armed robbery as long as it reasonably can be said to be a part of a single occurrence. People v. Heller, 131 Ill. App. 2d at 803.

In Washington, jewelry and cash were taken from the victims after they had been shot by defendants. In affirming defendants’ convictions for armed robbery, this court held that the fact that the victims had been reduced to a state of physical nonresistance at the time of the taking did not relieve the crime of the quality of armed robbery. The court stated that defendant’s claim that no robbery was intended until after the victims were shot did not compel a conclusion that the shootings were unrelated to the robbery. People v. Washington, 127 Ill. App. 3d at 377.

In the present case, the evidence established that defendant and one of the victims argued prior to the shootings; that immediately after the shootings, defendant and an unidentified individual fled the victims’ car; that defendant returned to the car a few minutes later and reached inside; and that money given to one of the victims before the shootings was recovered from defendant’s motel room. We find that this evidence is sufficient to support a conclusion that the shootings and the taking of money were all part of a single occurrence.

A contrary conclusion is not required even if we assume that the money was taken when defendant returned to the car after the shootings. As we stated above, the fact that a taking occurs after the use of force has rendered a victim unable to resist does not compel the conclusion that the taking and the use of force are unrelated. (People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285; see People v. Harrell (1982), 104 Ill. App. 3d 138, 432 N.E.2d 1163; People v. Novak (1981), 94 Ill. App. 3d 1024, 419 N.E.2d 393.) Accordingly, we find that the evidence sufficiently demonstrated that a causal connection existed between the use of force and the subsequent taking of property from Dixon.

Defendant next argues that he is entitled to a new trial because the trial court denied him his constitutional right of confrontation by allowing the use of hearsay statements to prove his guilt. Defendant contends that the testimony by Kevin Bass concerning the exchange between Dixon and defendant was used to show the truth of Dixon’s statement and, therefore, it was inadmissible hearsay. We disagree.

Not every in-court reference to an out-of-court statement constitutes hearsay. (People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303.) The term hearsay refers only to testimony of an out-of-court statement offered to prove the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter. (People v. McNeal (1987), 160 Ill. App. 3d 796, 513 N.E.2d 897; People v. Camp (1984), 128 Ill. App. 3d 223, 470 N.E.2d 540.) When an out-of-court statement is used, not as evidence of the fact asserted, but as circumstantial evidence for another purpose, it is not hearsay. (People v. McNeal, 160 Ill. App. 3d at 800; People v. Klisnick (1979), 73 Ill. App. 3d 148, 390 N.E.2d 1330.) Testimony of out-of-court statements used other than to establish the truth of the matter asserted does not rest for its value on the credibility of the out-of-court declarant; rather, the value of such testimony rests with the credibility of the witness, who is present in court and subject to cross-examination. People v. Camp, 128 Ill. App. 3d at 230; People v. O’Neal (1976), 44 Ill. App. 3d 133, 358 N.E.2d 47.

In the present case, Kevin Bass testified that prior to the shootings, Alanzia Dixon told defendant that “he wanted that money” and that defendant replied “not if I see you first.” Bass also testified that defendant reached for a “bulge” concealed in his jacket during the exchange with Dixon.

It is clear that Bass’ testimony was not offered to establish the truth of the matter asserted (i.e., to prove that Dixon actually wanted money); and the truth of Dixon’s statement is irrelevant. The value of Bass’ testimony lay in his observation of a disagreement between Dixon and defendant shortly before the shootings; and, therefore, it was Bass’ credibility, not Dixon’s, that was at issue. Thus, because Bass was present in court and because defendant had the opportunity to test Bass’ credibility through cross-examination, there was no error in the admission of the testimony.

Defendant also argues that he is entitled to a new trial because his counsel failed to provide effective representation. Defendant’s claim of ineffective representation is based on two instances of alleged incompetence: (1) counsel’s failure to object to hearsay testimony; and (2) counsel’s failure to move to strike testimony about defendant’s drug dealing.

The alleged hearsay testimony came in during the State’s direct examination of Gerald Petway. Petway testified that after the shootings, another car drove up and that during an argument between defendant and one of the car’s occupants, a statement was made that the wrong guy had been shot. No objection was made to this statement.

Later in the trial, during the direct examination of Larry Johnson, the State attempted to elicit testimony linking defendant to the Dixons’ drug dealing. Defendant’s counsel objected when Johnson was asked if defendant was employed by the Dixons, and the trial court stated that the objection would be sustained unless the State could show how Johnson would know defendant worked for the Dixons. After a sidebar, the trial court overruled counsel’s objection, but added that the testimony would be stricken if it was not “tied up.”

Johnson then testified that at one point defendant worked as an “overseer” for the Dixons but that at some later time defendant was fired. Counsel again objected when the State asked Johnson whether defendant tried to obtain drugs from the Dixons after he was fired. The trial court sustained the objection on the ground that there was no foundation for Johnson’s testimony. The court also sustained counsel’s hearsay objection to Johnson’s testimony that he was told by Leroy Dixon that defendant was no longer working for him.

Defendant argues that due to his counsel’s incompetence in not objecting to Petway’s hearsay testimony and in not moving to strike Johnson’s testimony after the trial court sustained objections thereto, two highly critical and damaging pieces of evidence remained in the State’s case. Defendant contends that the resulting prejudice requires that his conviction be reversed and the matter remanded for a new trial. We disagree.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the United States Supreme Court set forth the standard for determining whether the errors of counsel so prejudiced a defendant that a new trial is required. The Court stated that to establish ineffective assistance, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the fact finder would have had a reasonable doubt respecting guilt. A reasonable probability was defined by the Court as a probability sufficient to undermine confidence in the outcome of the proceedings. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The Court added that, in making the determination of whether the specified errors resulted in the required prejudice, a reviewing court should presume that the judge or jury acted according to the law. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

The Court also stated that in reviewing a claim of ineffective assistance, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and that a defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

In the present case, we find that the alleged errors did not result in prejudice to defendant. Turning first to defendant’s claim that he was prejudiced by his counsel’s failure to move to strike Johnson’s testimony, we note that the trial court sustained most of defendant’s objections to this testimony and stated that it would be stricken if no foundation was laid for the testimony. No foundation was presented, and although no motion to strike was filed, we may presume, under the Court’s holding in Strickland, that the trial court did not consider the testimony.

Defendant’s claim that he was prejudiced by counsel’s failure to object to Gerald Petway’s testimony is equally without merit. We note that Petway never clearly testified as to whether it was defendant or the occupant of the car who stated that the wrong man had been shot and that, therefore, it was impossible to determine whether the statement was hearsay. Defense counsel’s cross-examination of Petway indicates that he was aware of this fact, and it is possible that the failure to object was trial strategy, stemming from a desire to avoid giving Petway an opportunity to clarify his testimony.

Further, we find that even if counsel’s actions could not be considered sound trial strategy, a new trial is not required because defendant has failed to establish that there is a reasonable probability that but for counsel’s failure to object to Petway’s statement, the result of the proceedings would have been different. Contrary to defendant’s contention, the evidence against him was not close. There was ample evidence of defendant’s accountability for the shootings, and we cannot say that, absent Petway’s statement, there would have been a reasonable doubt respecting defendant’s guilt. See Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2069.

Defendant’s remaining arguments concern the propriety of his life sentence. Defendant first argues that the trial court erred in sentencing him to a term of natural life in prison for the double homicides.

Section 5—8—1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1)(c)) provides that a defendant who has been found guilty of murdering more than one victim shall be sentenced to a term of natural life imprisonment. Although this section has been held to be mandatory (People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059), defendant contends that because his guilt was based on accountability, section 5—8—1(a)(1)(c) should not be applied to him. We disagree.

In People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, the appellate court upheld the application of section 5—8—1(a)(1)(b) (Ill. Rev. Stat. 1983, ch. 38, par. 1005—8—1(a)(1)(b)), authorizing a term of natural life imprisonment where an offense is accompanied by brutal or heinous behavior indicative of wanton cruelty, to a defendant found guilty on the basis of accountability. The defendant had argued that because his guilt was based on accountability, he was not responsible for the brutal and heinous nature of the principal’s actions. The court rejected defendant’s argument and concluded that under section 5—8—1(a)(1)(b), it was the nature of the act and not the identity of the actor that permitted the imposition of a natural life sentence. (People v. Hines, 165 Ill. App. 3d at 304; see People v. Tibbs (1981), 103 Ill. App. 3d 73, 430 N.E.2d 681.) We find that a similar conclusion is required under section 5—8—1(a)(1)(c).

Section 5—8—1(a)(1)(c) states that a term of natural life imprisonment is to be imposed on a defendant found guilty of murdering more than one victim. The language of this section, like that of section 5—8—1(a)(1)(b), indicates that the imposition of a natural life term is to be based upon the acts for which a defendant is convicted and not upon his role in the commission of the acts.

Citing a number of cases in which reviewing courts have held that a lesser sentence may be imposed on one guilty on the basis of accountability than that imposed on a principal offender, defendant argues that application of section 5—8—1(a)(1)(c) to those found accountable would improperly limit the sentencing court’s discretion to take into consideration differences in participation and impose lesser sentences for those whose guilt is based on accountability. However, it appears that by enacting section 5—8—1(a)(1)(c), the legislature intended to restrict the sentencing court’s discretion in cases of multiple murders. This was clearly within the legislature’s authority (see People v. Taylor, 102 Ill. 2d at 208), and we see no reason to limit application of the section only to those found guilty as principal offenders.

In a further challenge to the trial court’s imposition of a sentence of natural life, defendant points out that both subsection (a)(1)(b) and subsection (a)(1)(c) of section 5—8—1 govern the punishment of those found guilty of a double homicide and argues the State’s decision to seek the death penalty amounted to an election to proceed under subsection (a)(1)(b) rather than subsection (a)(1)(c).

Imposition of the death penalty is governed by section 9—1(b) of the Criminal Code of 1961. (Ill. Rev. Stat. 1983, ch. 38, par. 9—1(b).) Subsection (a)(1)(b) of section 5—8—1 provides that a term of natural life may be imposed if any of the aggravating factors listed in section 9—1(b) are present. One of these factors is the murder of two or more individuals.

Defendant contends that by requesting a death penalty hearing, the State invoked the provisions of subsection (a)(1)(b) and that thereafter the trial court could not “switch” to the other subsection to impose a mandatory life sentence. Defendant cites no authority for his claim that the trial court was required to proceed under subsection (a)(1)(b) after the State sought the death penalty, and as far as we can discover, none exists.

Further, and contrary to defendant’s contention, the State did not invoke the provisions of subsection (a)(1)(b) by seeking the death penalty; rather, the State invoked only the provision of section 9—1(b) of the Criminal Code, and there is nothing in either section 9—1(b) or subsection (a)(1)(b) that supports a conclusion that, once the State seeks the death penalty, sentence may be imposed only under subsection (a)(1)(b). Moreover, during Senate hearings on Public Act 81—1118 (1979 Ill. Laws 4286-87), which added section 5—8—1 to the Unified Code of Corrections, the sponsor of the legislation indicated that, if the State sought the death penalty under the new statute and failed to get it, the minimum sentence would be life imprisonment. (81st Ill. Gen. Assem., Senate Proceedings, April 24, 1979, at 29.) Thus we find that defendant’s claim is wholly without merit.

Equally without merit is defendant’s contention that there is an ambiguity in section 5—8—1 and, therefore, the trial court was required to sentence him under subsection (a)(1)(b) rather than subsection (a)(1)(c). Defendant contends that a conflict exists between subsection (a)(1)(b), which provides that a life sentence may be imposed upon those convicted of murdering two or more individuals, and subsection (a)(1)(c), which provides that a life sentence shall be imposed upon those found guilty of murdering more than one victim. Defendant argues that this conflict must be resolved in his favor by application of the discretionary subsection. Similar arguments were rejected by this court in two recent cases. People v. Williams (1989), 205 Ill. App. 3d 751; People v. Winchel (1987), 159 Ill. App. 3d 892, 512 N.E.2d 1298.

In both Williams and Winchell, this court relied on rules of statutory construction in finding that subsection (a)(1)(c) is controlling in cases where a defendant is found guilty of multiple murders. Pointing out that subsection (a)(1)(b) is a general provision, while subsection (a)(1)(c) is specific and that in cases of conflict a specific provision prevails over a general one, we concluded that a natural life sentence is mandatory where a defendant is found guilty of murdering more than one victim. (People v. Williams, 205 Ill. App. 3d at 768; People v. Winchel, 159 Ill. App. 3d at 922-23.) We see no reason to depart from our earlier holdings.

In defendant’s final argument, he asserts that the mandatory life imprisonment provision of section 5—8—1(a)(1)(c) violates the eighth and fourteenth amendments of the United States Constitution. (U.S. Const., amends. VIII, XIV.) Defendant acknowledges that the Illinois Supreme Court has upheld section 5—8—1(a)(1)(c) against claims that it violates the State Constitution (People v. Taylor, 102 Ill. 2d 201), but argues that the supreme court has not ruled on its validity under Federal constitutional provisions. Defendant claims that, therefore, this court is not precluded from finding that the section is unconstitutional under Federal law.

This court has repeatedly rejected challenges to section 5—8—1(a)(1)(c) on both State and Federal constitutional grounds. (People v. Williams, slip op. at 23; People v. Bailey (1987), 164 Ill. App. 3d 555, 517 N.E.2d 570; People v. Cannon (1986), 150 Ill. App. 3d 1009, 502 N.E.2d 345; People v. Rodriguez (1985), 134 Ill. App. 3d 582, 480 N.E.2d 1147; People v. Boswell (1985), 132 Ill. App. 3d 52, 476 N.E.2d 1154.) Again we see no reason to depart from our earlier holdings, and we conclude once more that section 5—8—1(a)(1)(c) does not violate the eighth and fourteenth amendments to the United States Constitution.

In conclusion we find that the evidence was sufficient to support defendant’s convictions for the murders of Alanzia Dixon and Margaret Williams and the armed robbery of Dixon; that no error resulted from the admission of Kevin Bass’ testimony concerning the argument between defendant and one of the victims; and that defendant was effectively represented. We also find that defendant was properly sentenced to a term of natural life in prison and that the sentencing statute is not unconstitutional. For these reasons we affirm the convictions and sentence imposed by the trial court.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and FREEMAN, J., concur.