author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK CHILDS, Defendant-Appellant.
    Fourth District
    No. 4—91—0402
    Opinion filed February 28, 1992.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant was convicted of possession of a controlled substance (cocaine) weighing more than 1 gram but less than 15 grams (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)) and possession of less than 2.5 grams of cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 704(a)). The trial court sentenced defendant to 3 years in prison on the controlled substance conviction and 60 days in jail on the cannabis conviction, with the sentences to run concurrently. The trial court also imposed a $740 street value fine on defendant. Defendant appeals, arguing that (1) the trial court erred in refusing to suppress evidence found in defendant’s car, (2) the trial court erred in instructing the jury, and (3) defendant should receive $5 per diem credit toward his fine for the time he served in jail while awaiting trial.

We affirm and remand.

I. Facts

On October 18, 1989, at approximately 7:15 p.m., Officer Dan Hoeniges of the Bloomington police department saw a car with dealer license plates commit several minor traffic violations. Hoeniges activated his mars lights and pulled the car over. The car came to a stop near an intersection in a residential area. Defendant got out of the driver’s side of the car and started walking away from Hoeniges’ police car. While still seated in his police car, Hoeniges told defendant to stop. Defendant replied that he wanted to speak to a friend of his in a nearby house and kept walking. Defendant acted as if he did not know Hoeniges had pulled over the car defendant was driving. Hoeniges then saw another man exit the passenger side of the car and flee between two houses.

Hoeniges radioed for assistance. He then got out of his car, at which time defendant started to run. Hoeniges chased defendant on foot through the neighborhood, weaving through several backyards. Eventually, defendant fell while crossing a fence, and Hoeniges caught him. Hoeniges arrested defendant and escorted him back to the police car. Sergeant Joe Butcher had already arrived at the scene, and he took defendant to the Bloomington police station.

Soon thereafter, Officer Paul Williams arrived at the scene. Hoeniges and Williams radioed for a tow truck and proceeded to search the car. Williams found a plastic cup containing a liquid that smelled like alcohol, a portable police scanner, a bag containing eight unopened cans of beer, and a shoe box containing plastic baggies, scissors, and a razor.

Hoeniges retraced the path along which he had chased defendant and found two baggies within 3 feet of each other about 30 feet from the fence where defendant had fallen. Hoeniges had not seen defendant drop anything during the chase through the dimly lit area. At trial, an expert testified that one bag contained 16 smaller bags while the other contained 10 smaller bags. All of these smaller bags together contained a total of 6.2 grams of cocaine.

Meanwhile, when Butcher searched defendant at the police station, he found a baggie with a green leafy substance inside. The same expert who testified about the cocaine also testified that this baggie contained .5 grams of marijuana.

The State charged defendant with possession of a controlled substance (cocaine) weighing more than 1 gram but not more than 15 grams with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2)) and possession of cannabis (Ill. Rev. Stat. 1989, ch. 56½, par. 704(a)). Prior to trial, defendant moved to suppress the evidence found in his car. The trial court denied defendant’s motion regarding the items found in the passenger compartment of the car, holding that defendant had abandoned any privacy interest in the car by fleeing from Hoeniges. However, the trial court did suppress certain items the police found in the trunk of the car. The propriety of that ruling is not before us in this appeal.

After the presentation of evidence, the court instructed the jury on the two charges brought by the State and (as defendant requested) on the lesser included offense of possession of a controlled substance weighing more than 1 gram but less than 15 grams (without the intent to deliver). The jury acquitted defendant of possession of a controlled substance with intent to deliver, but convicted him of the lesser included offense of possession of a controlled substance weighing more than 1 gram but less than 15 grams and of possession of cannabis.

II. Analysis

A. The Motion To Suppress

Defendant first argues that the trial court should have suppressed the physical evidence found in the car he had been driving. Citing a treatise (1 W. LaFave, Search & Seizure §2.5(a), at 447 (2d ed. 1987) (hereinafter LaFave)), the trial court denied defendant’s motion to suppress, holding that the police did not need a warrant to search the car because defendant had abandoned his vehicle in an attempt to flee from the police. We agree.

In People v. Washington (1980), 90 Ill. App. 3d 631, 640-41, 413 N.E.2d 170, 177, the court addressed the same argument and wrote the following:

“According to the testimony of the defendant, as well as other witnesses, he abandoned the car on the street and fled the scene after the robbery, leaving the car unlocked and with the keys in it. At that point we can see no legitimate interest, possessory or otherwise, which the defendant had in the car and, of course, he certainly had no expectation of privacy in an unlocked, abandoned auto, with the ignition key still in it.”

In People v. Hoskins (1984), 101 Ill. 2d 209, 212, 461 N.E.2d 941, 942, when the undercover police officers told defendant she was under arrest for prostitution, she ran from the officers and either threw her purse to the ground or dropped it as she fled. The police retrieved her purse, searched it, and found cocaine. (Hoskins, 101 Ill. 2d at 212, 461 N.E.2d at 942.) Defendant made a motion to suppress that evidence, the circuit court granted the motion, the appellate court affirmed, and the supreme court reversed. (Hoskins, 101 Ill. 2d at 211-12, 461 N.E.2d at 942.) The supreme court explained its decision as follows:

“The defendant either dropped or threw her purse to the ground as she fled from the police officers. In either event it can be said that she abandoned it. If dropped unintentionally, she made no effort to pick it up. She obviously intended to flee and escape and not return for the purse. The intent at that time was to abandon it. *** Certainly the defendant did not retain, but rather gave up, any expectation of privacy in the purse and its contents. She could not have an expectation that a purse lying in a public street would not be picked up and examined.” Hoskins, 101 Ill. 2d at 219-20, 461 N.E.2d at 946.

Defendant attempts to distinguish Washington by claiming that he did not immediately flee from the car, but instead casually got out of the car not knowing that Hoeniges had stopped him. Defendant asserts that only after he had walked away from the car did he begin to flee from Hoeniges. Thus, defendant argues, his flight did not demonstrate any intent to abandon the car. We are unpersuaded.

It was dark out when Hoeniges used the mars lights on his police car to pull over the car defendant was driving. When defendant got out of the car and started walking away, he disregarded Hoeniges’ order to stop. We also note that in his hurry to get out of the car, defendant left the car keys in the ignition. Notwithstanding defendant’s initial playacting, the evidence demonstrates that defendant intended to flee from the car (and from the police who had stopped him) from the moment he got out of the car.

We find pertinent the following discussion regarding vehicle abandonment by Professor LaFave:

“Courts have also found cars to be abandoned when it appeared that the operator of the vehicle left the car behind in an effort to avoid apprehension by the police. Sometimes the car had actually been pursued by the police for some distance, after which the driver jumped from the car and fled on foot. On other occasions the vehicle was parked when the occupant, upon seeing the police approach, exited the vehicle and took flight.” 1 LaFave, §2.5(a), at 447.

We will not reverse a trial court’s ruling on a motion to suppress unless it is manifestly erroneous. (People v. Redd (1990), 135 Ill. 2d 252, 289, 553 N.E.2d 316, 332.) Based on the foregoing, we certainly cannot say that the trial court’s ruling that defendant abandoned the car was manifestly erroneous. Accordingly, the trial court properly denied defendant’s motion to suppress the evidence found in the vehicle.

B. Jury Instructions

Defendant next argues that the trial court erred when it instructed the jury. First, defendant argues that the court erred by using an outdated version of Illinois Pattern Jury Instructions, Criminal, Nos. 2.01 and 26.01. (Illinois Pattern Jury Instructions, Criminal, Nos. 2.01, 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Second, defendant argues that the trial court failed to properly instruct the jury on the definition of possession. Third, defendant argues that the court erred by submitting a corrected written verdict form to the jury when the court discovered that the verdict form it had previously read to the jury was defective. Because defendant raised no objection at trial regarding any of these alleged errors, he has waived all of these issues on appeal unless he can show that the alleged errors constitute plain error. See People v. Smith (1991), 209 Ill. App. 3d 1043, 1055-56, 568 N.E.2d 482, 489-90.

1. Using Outdated IPI Jury Instructions

The trial court used IPI Criminal 2d Nos. 2.01 and 26.01 in instructing the jury. Although newer instructions from the 1989 supplement to IPI Criminal 2d were available, neither party submitted a version of new instructions 2.01R or 26.01R contained in the 1989 supplement that would have been applicable to this case. (See Illinois Pattern Jury Instructions, Criminal, Nos. 2.01R, 26.01R, at 43-44, 369-70 (2d ed. Supp. 1989).) As a result, the trial court used the old versions of those instructions, namely, IPI Criminal 2d Nos. 2.01 and 26.01.

In People v. Tucker (1990), 193 Ill. App. 3d 849, 854, 550 N.E.2d 581, 584, this court held that “use by a trial court of an earlier IPI version of [an] instruction is not reversible error as long as the earlier version still correctly states the law.” Although we agree with the IPI Criminal Committee that the new Nos. 2.01 and 26.01 instruction series contained in the 1989 supplement (see Illinois Pattern Jury Instructions, Criminal, Nos. 2.01A through 2.01AA, 26.01A through 26.01AA (2d ed. Supp. 1989)) improve the charging and concluding instructions, the former instructions were not incorrect. However, Supreme Court Rule 451 (134 Ill. 2d R. 451) required the trial court to use the new instructions regardless of why the IPI Criminal Committee promulgated them, and its failure to do so was error. Nonetheless, on this record we conclude that this error does not require reversal and falls far short of constituting plain error.

We also note that not only did defendant fail to object to this alleged error, but he actually submitted the old versions of instruction Nos. 2.01 and 26.01 for the court to use. In People v. Pardieck (1990), 198 Ill. App. 3d 432, 555 N.E.2d 1132, defendant argued that the trial court erred by using an instruction tendered by the defendant. In response, the court held that it would “not let a defendant create a condition [at trial] and then claim error [on appeal].” (Pardieck, 198 Ill. App. 3d at 434, 555 N.E.2d at 1133.) We agree with Pardieck that a defendant may not claim error based on an instruction given to the jury that defendant tendered to the court.

2. Defining Possession

Defendant next claims that the trial court erred in not instructing the jury on the definition of “possession.” (See IPI Criminal 2d No. 4.16.) Again, because defendant failed to raise this objection at trial, we must resolve whether this omission, if error at all, constituted plain error.

Although Hoeniges did not find the cocaine on defendant’s person, he did find it in a place (along the path where he pursued defendant) that did not raise any issue as to whether defendant constructively or jointly possessed the cocaine. Instead, the question for the jury was whether defendant had possessed the cocaine and discarded it as he ran.

Although the committee note to IPI Criminal 2d No. 17.12, defining possession of controlled substances, states that IPI Criminal 2d No. 4.16 should be given to the jury (IPI Criminal 2d No. 17.12, Committee Note, at 375), neither party requested the court to do so in the present case. On the record before us, we conclude that the failure of the trial court to give IPI Criminal 2d No. 4.16 sua sponte was not error, much less plain error.

3. Correcting the Verdict Form to Include “With the Intent to Deliver”

Defendant next claims that the trial court erred when it corrected the verdict form for guilty of possession of a controlled substance with the intent to deliver. The verdict form the court originally submitted to the jury failed to include the intent to deliver element. Defendant failed to call this error to the judge’s attention before the instructions were read to the jury. As the judge read the verdict form to the jury, he noticed the error and called the matter to both parties’ attention immediately after he sent the jury out.

The judge corrected the instruction by writing the words “with the intent to deliver” in the appropriate place on the verdict form and sending a copy of the corrected instruction to the jury. The judge asked defense counsel if he objected to this action, and defense counsel replied that he did not. Thus, as with the other claimed instructional errors, we will only reverse if this alleged error constituted plain error.

We note that this omission occurred only on the verdict form, not on the definitional or the issues instructions, both of which did contain the phrase “with the intent to deliver.” Furthermore, the jury did not convict defendant of the offense to which the missing element related; instead, the jury convicted defendant of mere possession of a controlled substance, not possession with the intent to deliver. Under all of these circumstances, we hold that the trial court committed no error in its handling of the matter.

C. Per Diem Credit for Time Served in Pretrial Custody

Last, defendant argues that the trial court should have given him $5-per-day credit toward the fines the court imposed for the time he spent in pretrial custody. (See Ill. Rev. Stat. 1989, ch. 38, par. 110—14.) Although defendant did not raise this issue before the trial court, he has not waived it on appeal because he did not receive the statutorily required written notice upon conviction of the provisions of section 110 — 14. (See People v. Joseph (1988), 176 Ill. App. 3d 636, 642, 531 N.E.2d 432, 435-36.) The State concedes that the defendant should receive this credit, and we agree. Accordingly, we remand this matter to the trial court with directions to award the appropriate $5-per-day credit.

III. Conclusion

For the reasons stated, we affirm defendant’s conviction but remand to the trial court with directions to amend the sentencing order as indicated.

Affirmed and remanded.

McCULLOUGH and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH W. SINNOTT, Defendant-Appellant.
    Fourth District
    No. 4—91—0274
    Opinion filed March 26, 1992.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Kevin T. McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On April 12, 1990, defendant Kenneth Sinnott was charged in McLean County with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)(A).) On January 31, 1991, a jury acquitted defendant of the charged offense but convicted him of the uncharged included offense of unlawful possession of a controlled substance. (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(a)(2).) He was sentenced to a four-year term of probation with various conditions. The court also imposed a $400 fine, a street-value fine of $2,700, and court costs.

Defendant appeals, arguing (1) the judge violated the separation-of-powers doctrine and denied him assistance of counsel by sua sponte including jury instructions on an uncharged included offense when defense counsel objected to their inclusion and the State had acquiesced in not instructing on the included offense; (2) imposing a street-value fine violates due process because he was a user and not a trafficker of controlled substances and the intent of the statute is to treat traffickers more harshly; and (3) he is entitled to credit toward both fines for the 63 days he was incarcerated before sentencing. We affirm the trial court’s inclusion of the jury instruction on the lesser offense, and reject defendant’s second argument. We agree defendant is entitled to $5 credit for each day he was in custody before sentencing, but only toward one of his fines.

At defendant’s trial, David Jocson, special agent for the Illinois State Police, testified he went to the Amtrak station in Bloomington on March 16, 1990, after receiving information defendant would be arriving on a train from Chicago and would be in possession of cocaine. When defendant and his girlfriend exited the train, Jocson approached them and identified himself. Defendant agreed to speak with Jocson and denied he possessed any drugs. Defendant consented to a pat-down search and to a search of his backpack. Jocson found a cocaine grinder, 27.5 grams of cocaine, and a “one-hitter” containing cocaine. Jocson testified a normal dose of cocaine was one-quarter to one-half gram. He stated on cross-examination that in searching defendant’s backpack he did not find any paraphernalia commonly used to ingest cocaine, such as blades, mirrors, straws, or rolled papers.

Michael Bernardini, a special agent supervisor for the Illinois State Police, testified he too was present when defendant was arrested at Amtrak. According to Bernardini, when he later asked defendant why he sold narcotics, defendant told him he did it for money. On cross-examination, Bernardini stated normally a person would buy between one-quarter gram and one gram for personal use. He conceded that some people consume more than others. On direct examination he stated he did not believe the defendant was under the influence of any substance when he interviewed him.

Russell Thomas, a detective with the Bloomington police department, testified when he booked defendant on March 16 defendant possessed a vial containing a white powdery substance. Thomas testified he heard defendant state to Bernardini that he was selling drugs for money. Daniel Lecocq, a forensic scientist with the Illinois State Police, testified the grinder contained cocaine residue, the substance found in defendant’s jeans contained 68% pure cocaine, and the vial contained .89 grams of cocaine.

Defendant testified that on March 16, 1990, he went to Chicago to visit his parents. While in Chicago, defendant purchased approximately one ounce of cocaine. Defendant also admitted paraphernalia found in his possession the day of his arrest belonged to him. He described himself as a cocaine addict. The 27.5 grams found in his possession would have lasted him five to eight days. Defendant testified the cocaine he possessed was for his own use and he was not intending to sell it. He denied he told Bernardini he was selling cocaine for money.

At the instructions conference, defense counsel informed the trial judge that after discussions with defendant, defendant did not wish to submit instructions related to the uncharged included offense of possession of a controlled substance. The judge however, concluded instructions on the included offense were necessary. Over defense counsel’s objections, the judge instructed the jury on the included offense of possession of controlled substances. The State did not object to the giving of the instructions.

The judge instructed the jury that the charged offense included the lesser offense of possession, provided a definition of possession, and gave an issues instruction stating the elements necessary for the jury to find defendant guilty of possession. The jury was provided verdict forms to determine defendant’s guilt in reference to the charged offense, the uncharged included offense of possession only, or a determination of not guilty as to both charges. In his post-trial motion, defendant alleged the trial court erred by instructing the jury on the uncharged included offense when the State did not object to the not instructing on it. Defense counsel contended the judge’s action amounted to his assuming the role of an advocate and deprived defendant of the advice of counsel. Defense counsel also filed an affidavit in which he stated that after discussions with him, defendant knowingly and voluntarily decided to not seek such instructions.

At defendant’s sentencing hearing, Kirk Lonbom, a criminal intelligence analyst with the Illinois State Police, testified the street value of cocaine in March 1990 was $100 per gram. Because defendant possessed 27.5 grams when he was arrested, the value of the cocaine found in his possession was $2,700.

The first issue raised by defendant is the propriety of the trial judge’s sua sponte instructing on the uncharged included offense when defense counsel objected to these instructions and the State had acquiesced in not instructing on it. The State contends the judge was correct in including the instructions on the included offense because if the instructions were not provided, reversible error might have resulted.

Defendant first argues this action violated the separation-of-powers doctrine because by including the instructions under these circumstances, the judge assumed the role of an advocate. This role, defendant contends, is generally reserved for the prosecutor. Defendant cites several cases in support of his contention. These cases, however, emphasized that it is the prosecutor’s role to determine which offenses should be charged against a defendant. See People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 45-46, 445 N.E.2d 270, 272; People v. Coleman (1990), 205 Ill. App. 3d 567, 577, 563 N.E.2d 1010, 1016.

The State argues defendant has waived this issue by not including it in his post-trial motion. Although defendant’s post-trial motion does not specifically raise a separation-of-powers argument, the motion complains that the trial judge assumed the role of an advocate. This was sufficient to preserve the issue for our consideration. See People v. Land (1988), 169 Ill. App. 3d 342, 354, 523 N.E.2d 711, 718.

The State also argues defendant lacks standing to raise the separation-of-powers argument because the judge’s actions affected only the State’s prosecutorial powers. It cites United States v. Miller (1976), 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619, as support. Miller is distinguishable. The Court concluded defendant had no fourth amendment privacy protection in bank records which the government subpoenaed. (Miller, 425 U.S. at 443-44, 48 L. Ed. 2d at 79-80, 96 S. Ct. at 1624.) Unlike Miller, defendant in this case had a right to a fair proceeding. The State’s powers were not the only rights affected. Defendant was convicted only of the included offense as to which the judge required the instructions. Without those instructions, defendant may not have been convicted of any offense.

Defendant contends the court usurped the role of the State as prosecutor by requiring the instructions. Perhaps the prosecutor should not have initially acquiesced in not giving these instructions. However, the prosecutor did not object to giving the instructions when the judge indicated it was necessary to instruct on the uncharged included offense. The State did not, and does not, complain that the judge usurped an executive power typically delegated to the prosecutor.

In any event, substantial defects in instructions may be reviewed where the evidence of guilt is close or when the error denied defendant a fair trial. (People v. Shields (1991), 143 Ill. 2d 435, 446, 575 N.E.2d 538, 543; People v. Thurman (1984), 104 Ill. 2d 326, 330, 472 N.E.2d 414, 416.) Although the evidence as to whether defendant possessed contraband is not closely balanced, his fundamental right to a fair proceeding compels us to consider whether it was proper for the judge to provide the instructions on the uncharged included offense.

Therefore, we consider the merits of defendant’s argument. An included offense contains some but not all elements of the greater charged offense and no other elements. It is impossible to commit the greater offense without also committing the lesser. (People v. Traufler (1987), 152 Ill. App. 3d 987, 990, 505 N.E.2d 21, 23.) An indictment of a particular offense is an indictment on all included offenses even though the included offenses are not specifically set forth in the indictment. (People v. Ostrand (1966), 35 Ill. 2d 520, 530, 221 N.E.2d 499, 505 (and cases cited therein).) A person must first possess a controlled substance before the person can intend to deliver it. The possessory offense of which defendant was convicted (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(a)(2)), and on which the judge provided the instructions, was an included offense of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(a)(2)(A)). See, e.g., the issues instructions for the two offenses (Illinois Pattern Jury Instructions, Criminal, Nos. 17.11, 17.13, at 237, 242-43 (2d ed. Supp. 1989)).

For reasons other than the State’s rationale, we conclude the trial judge did not err by providing instructions on this offense. It was within the judge’s discretion to instruct upon it. The State relies on Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, as support for its argument the defendant is entitled to included offense instructions to protect him from substantial risk that the jury will convict of the greater charge where he is clearly guilty of some offense. Beck, 447 U.S. at 633-34, 65 L. Ed. 2d at 400-01, 100 S. Ct. at 2388, quoting Keeble v. United States (1973), 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98.

We find it unnecessary to rely on these cases which were based on the court concluding it was prohibited from providing instruction on the included offense. In Beck, an included offense instruction was not provided because of an Alabama statute prohibiting such an instruction in capital cases. (Beck, 447 U.S. at 627-28, 65 L. Ed. 2d at 396-97, 100 S. Ct. at 2384-85.) An instruction on the included offense in Keeble was not provided because it was not enumerated as a crime for which a Native American who committed the charged offense on an Indian reservation could be tried under the Major Crimes Act of 1885. Keeble, 412 U.S. at 205-06, 36 L. Ed. 2d at 846, 93 S. Ct. at 1994.

The State also relies on cases in which included offense instructions requested by defendant were not provided. (See People v. Fonville (1987), 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255, 1262.) In this case, defendant objected to the instructions on the uncharged included offense.

The issue raised by the facts here is whether a trial judge can sua sponte submit jury instructions on an uncharged included offense. In People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266, the Illinois Supreme Court discussed this issue. The court concluded, “[w]hen the evidence will support either charge and the prosecution does not tender an instruction on the lesser offense, the defendant has a choice, subject to the judge’s authority to instruct sua sponte, of submitting one or both instructions.” (Taylor, 36 Ill. 2d at 490, 224 N.E.2d at 270.) The jury convicted Taylor of murder. Defendant argued the judge should have sua sponte provided an instruction on the lesser offenses of voluntary and involuntary manslaughter. (Taylor, 36 Ill. 2d at 487-88, 224 N.E.2d at 269.) The court disagreed. Its reasoning illustrates our view of the judge’s role in determining whether instructions on an uncharged included offense should be given over defendant’s objection. See also People v. Washington (1971), 132 Ill. App. 2d 616, 622, 270 N.E.2d 436, 439.

The court reasoned a defendant’s claim to a “right” to included offense instructions is inappropriate. It noted when defendant waives a jury trial, the judge determines whether he is guilty of an included offense or the greater offense and he has no “right” to restrict the judge’s determination of his guilt or innocence only to the greater offense of murder. (Taylor, 36 Ill. 2d at 488-89, 224 N.E.2d at 269-70; see also People v. Tattle (1972), 3 Ill. App. 3d 326, 328, 278 N.E.2d 458, 459-60.) The court further reasoned:

“And if the evidence would support a verdict of manslaughter, a defendant will not be heard to complain that a manslaughter instruction was given, even though he did not request it. *** It is only where the evidence establishes that the defendant is guilty of murder or is not guilty, as for example in cases in which the defense is alibi, or mistaken identity, that a defendant may be said to have a right not to have the jury charged as to lesser included offenses.” Taylor, 36 Ill. 2d at 489, 224 N.E.2d at 270.

Defendant does not contend the evidence was insufficient to convict him of possession of a controlled substance. In fact, defendant testified he possessed the controlled substance for personal use, thereby conceding he possessed the drugs. The evidence supported a guilty verdict against defendant for possession. He cannot complain. It was within the judge’s discretion to submit the jury instructions on the uncharged included offense despite defendant’s objection.

Taylor referred to considerations a trial judge may factor in when exercising discretion and determining whether to sua sponte submit instructions on an uncharged included offense:

“In exercising his discretion it is appropriate for the judge to consider that from the point of view of the public interest in the punishment of wrongdoers, one whose conduct is unlawful should not escape punishment altogether because a jury does not believe that he is guilty of the greater offense. It is also appropriate for him to consider that from the defendant’s point of view, the likelihood of a compromise conviction may be enhanced if the jury is permitted to consider successive offenses involving lesser degrees of criminality. In reaching his conclusion it is not impermissible for the judge to give weight to the views of the prosecution and defense as indicated by their requests for instructions.” Taylor, 36 Ill. 2d at 491, 224 N.E.2d at 271.

Similarly, defendant cannot expect to escape punishment for admitted possession of controlled substances merely because (1) the State charged him only with a greater offense, and (2) the jury was not convinced he was guilty of the charged offense, i.e., possession with intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, pars. 1402(a)(2), 1401(a)(2)(A)). Although there was conflicting evidence about whether defendant intended to deliver the controlled substances to others, defendant admitted possession. It would have been a miscarriage of justice to not inform the jury defendant could be found guilty of the uncharged included offense. The trial judge did not abuse his discretion by providing instructions on the included offense to the jury despite defendant’s objection.

As guidance to trial courts hearing jury trials in which evidence of uncharged included offenses have been presented, we suggest the following guidelines for the instructions conference to clarify the role of the judge, defense counsel, and prosecutor in determining whether instructions on an uncharged included offense will be provided:

(1) At a conference on jury instructions, the court should inform the parties sua sponte if it believes the evidence presented at trial would permit the jury to find defendant guilty of an uncharged included offense and not guilty of the greater offense.
(2) The court should then sua sponte inform the parties that if either side asks it to instruct on uncharged included offense(s) it will do so.
(3) The court should make clear to the parties that if neither side asks for such instructions, the court has the discretion to instruct thereon anyway. However, if the court has at that point already determined that it does not intend to give such instructions sua sponte, it should so inform the parties.
(4) The court should direct defense counsel to discuss this matter with defendant, informing defendant of the possible options and providing counsel’s best professional judgment as to which option defendant should take.
(5) When defense counsel informs the court that counsel and defendant have fully discussed the decision about this matter, whatever decision the court is informed defendant wishes to make, the court should personally conduct an inquiry of defendant to ensure that defendant fully understands the nature of the decision he is making. This latter step is especially important in the most serious cases and should avoid subsequent post-conviction petitions based on allegations that defendant did not understanding^ and knowingly elect his right to request or not request that the jury be instructed on the uncharged included offense.

This guidance should ensure the parties and defendants are fully informed that the trial judge has discretion in determining when instructions on uncharged lesser included offenses should be provided irrespective of whether either party submits the instructions or the defendant objects to their inclusion. The judge can sua sponte instruct on uncharged included offenses.

Defendant next argues the judge’s action in including the instructions was error because it deprived him of assistance of counsel. He reasons he rejected the inclusion of the instructions after lengthy discussions with his counsel. Because this decision was a strategic decision, the judge’s inclusion of the instructions denied defendant the benefit of this strategy and therefore denied him the benefit of counsel.

A court should exercise restraint in giving instructions on its own motion when the instructions could interfere with defense strategy. (People v. Requena (1982), 105 Ill. App. 3d 831, 837, 435 N.E.2d 125, 129, citing People v. Spataro (1978), 67 Ill. App. 3d 69, 384 N.E.2d 553.) The judge’s inclusion of the instructions here did not interfere with defense strategy. Defendant’s testimony does not support an argument that his strategy was to establish he did not possess the controlled substances. Rather, defendant testified on direct examination that the grinder, the cocaine, and the vial containing cocaine, all discovered in his possession on March 16, belonged to him. He also described himself as a cocaine addict.

Moreover, in developing his trial strategy, defense counsel could not have presumed the instructions would not be requested by the State during the instructions conference. If the State requested the instructions, defendant could not have complained because the instructions related to an included offense. Trial strategy does not include simply hoping the jury will not be informed of the offenses of which defendant can be found guilty given the evidence presented.

Defendant next argues the $2,700 street-value fine imposed against him violates due process when he is a mere user as opposed to a trafficker. The provision under which the fine was imposed provides in relevant part:

“When a person has been adjudged guilty of a drug related offense involving possession or delivery of *** a controlled substance as defined in the Cannabis Control Act, as amended, or the Illinois Controlled Substances Act, as amended, in addition to any other penalty imposed, a fine shall be levied by the court at not less than the full street value of the cannabis or controlled substances seized.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-9-1.1.

Defendant argues subjecting a user of controlled substances to the same fines as a trafficker violates the due-process protections of the user. He relies on portions of section 100 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 1100 et seq.), stating the legislative intent therefor. The intent of the Act, in part, is to “penalize most heavily the illicit traffickers or profiteers of controlled substances” and not to “treat the unlawful user *** with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances.” Ill. Rev. Stat. 1989, ch. 56½, par. 1100.

An objection at trial and a written post-trial motion are necessary to preserve this issue. (People v. Felella (1989), 131 Ill. 2d 525, 540, 546 N.E.2d 492, 498; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Defendant has waived this argument because he did not object to questioning at his trial about the street value of the 27.5 grams which he possessed when he was apprehended, nor did he object to the imposition of the fine at sentencing, or raise this argument in his post-trial motion.

Moreover, had defendant properly preserved this issue for review, we would find no merit in the due-process challenge to the statutory scheme.

We note the State contends the statutory scheme does not treat possessors of controlled substances more harshly than defendants who have been convicted of possessing contraband with the intent to deliver. Defendant does not allege this error. The State directs some of its argument to the fact that the statutory scheme does not pose an equal protection problem. Defendant alleges a due-process violation. There is no reason for us to discuss equal protection.

Defendant’s due-process rights are not violated by this statutory scheme. As support for his contention, defendant cites to reviewing courts which have stated the purpose of section 5 — 9—1.1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—1.1) is to prevent drug trafficking and deter the accused who would know in advance the potential monetary penalty that would be imposed. People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 1074, 522 N.E.2d 139, 142; see also People v. Lusietto (1989), 131 Ill. 2d 51, 55, 544 N.E.2d 785, 787.

Both instances involved a defendant liable for a street-value fine because defendant was convicted of trafficking or attempting to traffic. In Lusietto, defendant pleaded guilty to unlawful delivery of a controlled substance. (Lusietto, 131 Ill. 2d at 52, 544 N.E.2d at 785.) Defendant in Carrasquilla was convicted of possession of controlled substances with intent to deliver. (Carrasquilla, 167 Ill. App. 3d at 1072, 522 N.E.2d at 140.) The court in these instances had no reason to note the legislative intent behind street-value fines when a defendant is convicted of possession. The courts were not asked to address the issue before us.

One part of Lusietto quoted by defendant is apt. The Lusietto court noted section 5 — 9—1.1 of the Code was enacted to “discourage and impede the illegal buying *** and using of drugs.” (Lusietto, 131 Ill. 2d at 55, 544 N.E.2d at 787.) We previously characterized the provision as applying to “drug offenders” and looked specifically to the stated legislative intent of section 100 of the Act, which states the intent is to provide a system of control over distribution and use of controlled substances although traffickers and profiteers should be penalized most heavily. People v. Ruff (1983), 115 Ill. App. 3d 691, 694, 450 N.E.2d 1369, 1372-73.

The Illinois Supreme Court has upheld the constitutionality of the provision attacked by defendant. The court reasoned that because the amount of the mandatory fine was based on the street value of the amount of drugs involved, a large-scale operator would, necessarily, be punished more severely than a petty distributor. (People v. Harmison (1985), 108 Ill. 2d 197, 205, 483 N.E.2d 508, 512.) As noted in Harmison, the General Assembly sets the nature and extent of penalties. (Harmison, 108 Ill. 2d at 205, 483 N.E.2d at 512, citing People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 416 N.E.2d 259.) Whether it properly exercised this power is determined by looking to whether the statute is reasonably designed to address the problems the legislature viewed as a public threat. (Harmison, 108 Ill. 2d at 205, 483 N.E.2d at 512, citing People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) Although the court in Harmison addressed treatment of large-scale versus petty distributors, we find the same reasoning applies when a possessor of controlled substances is fined. Defendant argues a user could be in possession of larger quantities than a distributor. This argument is not compelling.

We find persuasive the decision of the Second District Appellate Court in People v. Moffitt (1985), 138 Ill. App. 3d 106, 485 N.E.2d 513, wherein defendant argued the provision as applied to a mere possessor of controlled substances is not a reasonable means for the legislature to attain its purpose. One who possesses controlled substances merely for his own use could reasonably be expected to be in possession of a smaller quantity of controlled substances than a person possessing quantities with the intent to distribute the substances to others. In this way, a possessor, as opposed to a trafficker, would receive a smaller fine based on the amount possessed. (Moffit, 138 Ill. App. 3d at 119, 485 N.E.2d at 522-23.) Defendant’s due-process rights are not violated by section 5 — 9—1.1 of the Code. His fine was reasonably based on the amount of controlled substances which he possessed when he was arrested March 16,1990.

Defendant finally argues he is entitled to $315 against his $400 fine and his $2,700 street-value fine because he spent 63 days in custody before he was sentenced. The State argues defendant is not entitled to credit because he did not present this argument to the trial court or include it in his post-trial motion. Defendant’s failure to seek credit at the trial level does not preclude our granting him credit because there is no indication the circuit clerk informed him of his entitlement. People v. Emery (1989), 190 Ill. App. 3d 171, 173, 546 N.E.2d 658, 659; Ill. Rev. Stat. 1989, ch. 38, par. 110—14.

At sentencing, defendant received 63 days’ jail credit for time served. Section 110 — 14 of the Illinois Code of Criminal Procedure of 1963 provides that defendant is entitled to a $5 credit against a fine for each day defendant spent in custody for the offense of which he was convicted. (Ill. Rev. Stat. 1989, ch. 38, par. 110—14.) Although defendant is entitled to a $5-per-day credit, he argues this credit should be applied to reduce each of his fines.

Defendant contends we should refuse to follow a fifth district ruling that defendant was not entitled to have the $5-per-day credit for two days previously served credited against both his fine for unlawful delivery of a controlled substance and his street-value fine. (People v. Cole (1987), 155 Ill. App. 3d 171, 172, 507 N.E.2d 1319, 1320.) The Cole court reasoned the fines provided for under sections 5 — 9—1 and 5 — 9—1.1 of the Code (see Ill. Rev. Stat. 1989, ch. 38, pars. 1005 —9—1, 1005—9—1.1) are separate and distinct. It noted that in section 5— 9 — 1.1 of the Code the legislature specifically provided for the street-value fine in addition to any other penalty imposed. (Cole, 155 Ill. App. 3d at 172, 507 N.E.2d at 1320.) We do not view the language in section 5 — 9—1.1 of the Code as precluding a defendant from receiving credit toward his street-value fine. This does not necessarily compel us to reach defendant’s conclusion that he should receive credit against both his $2,700 street-value fine and an additional $400 fine.

Defendant argues the Illinois Supreme Court ruling in People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879, supports his view. In Hare, the court ruled a defendant could receive the $5 credit for each day the defendant has remained in custody on a bailable offense prior to conviction and sentencing, and also sentence credit against the sentence of imprisonment imposed. (Hare, 119 Ill. 2d at 449, 519 N.E.2d at 882.) Despite defendant’s contention, we conclude this ruling does not support the award of such credit against more than one fine. Credit against the sentence and fines imposed is distinct from what defendant seeks in this case. He seeks credit against more than one fine, i.e., double the monetary credit.

The legislature does not appear to have intended this outcome. The Illinois Supreme Court has noted that in statutorily granting a $5-per-day credit against a defendant’s fine the legislature may have assumed that persons who are not in custody are more likely to retain employment than persons in custody, and therefore are better able to pay any fines subsequently imposed by the court. (Hare, 119 Ill. 2d at 448-49, 519 N.E.2d at 882.) There is no indication the legislature intended to provide such credit to defendants against more than one fine, where two or more fines are imposed based upon various statutory provisions.

Defendant is entitled to a $5-per-day credit for the 63 days he was imprisoned before his conviction. This credit should not be applicable to both his street-value fine and his additional $400 fine. Accordingly, the case is remanded to the circuit court of McLean County with directions for a $5-per-day credit to be given against one of defendant’s fines.

Affirmed and remanded in part with directions.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN M. KECK, Defendant-Appellant.
    Third District
    No. 3—91—0562
    Opinion filed April 2, 1992.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Steven M. Keck, pled guilty to the offense of felony theft (Ill. Rev. Stat. 1989, ch. 38, par. 16—1(1)) and was sentenced to 24 months of probation. He was also ordered to pay restitution, court costs, and a $250 fine. Thereafter, his probation was revoked due to his failure to pay his fine. He was subsequently sentenced to SVa years of imprisonment for his theft conviction. The defendant appeals.

We initially note that both the defendant and the State have filed motions to strike in this case, each contending that the other has cited facts not supported by the record. To the extent the parties have gone outside the record, we hereby grant the motions to strike and take no notice of those facts and arguments.

The defendant first argues on appeal that the State did not prove that he wilfully failed to comply with the financial obligation imposed upon him as a condition of his probation.

The record shows that from October of 1989 to May of 1991, the defendant held eight different jobs, none of them lasting more than a month. No evidence was adduced explaining why the defendant was unable to maintain employment for a longer period of time.

The record also shows that the defendant’s living expenses were greater than the income he earned at his various places of employment. In addition, when asked if he had any spending money after paying rent, gas, utilities, and food, the defendant testified that he did not. However, the defendant did admit to spending $1.20 a day on cigarettes.

Following the hearing, the trial court found that the defendant’s failure to maintain employment and his smoking habit were evidence of the defendant’s bad faith in trying to pay off his financial obligations. As such, it found that the defendant’s failure to pay was a wil-. ful refusal to pay. It therefore revoked the defendant’s probation and sentenced him to a prison term.

Probation shall not be revoked for failure to comply with conditions of a sentence which impose financial obligations upon an offender unless such failure is due to his wilful refusal to pay. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 6—4(d).) The burden is on the State to prove that the defendant’s failure to comply with his financial obligations was a wilful refusal before probation can be revoked for such a failure to comply. (People v. Harder (1975), 59 Ill. 2d 563, 322 N.E.2d 470.) In addition, it is essential that a finding be made as to the defendant’s financial ability to pay. (People v. Susberry (1979), 68 Ill. App. 3d 555, 386 N.E.2d 361.) A reviewing court will not disturb a trial court’s order revoking probation absent an abuse of discretion. People v. Moaton (1989), 182 Ill. App. 3d 161, 537 N.E.2d 989.

In the case at hand, we find that the trial court abused its discretion in revoking the defendant’s probation. We note that the record does not support a finding that the defendant’s failure to pay his financial obligation was wilful. The State presented no evidence showing that the defendant intentionally maintained only sporadic, low-paying employment.

In addition, the State failed to overcome the defendant’s evidence that he was in a difficult financial situation. The defendant testified that after paying his monthly expenses he had no spending money. Although the defendant admitted spending money on cigarettes, we find no support for the trial court’s finding that this fact was enough to show that the defendant wilfully failed to pay his financial obligations.

Based on the facts of this case, we decline to find that the defendant’s smoking habit and lack of steady employment were enough evidence for the trial court to revoke the defendant’s probation. We therefore find that the State failed to prove that the defendant had the ability to meet his financial obligations. As such, the State failed to show that the defendant wilfully violated his probation.

Accordingly, the trial court’s order revoking the defendant’s probation is reversed. We note that our disposition of this issue renders moot the defendant’s argument that his sentence was excessive.

The defendant next argues that he should be credited with a reduction in his fine due to the time he served in jail prior to the probation revocation hearing at issue in this case. He contends that he is entitled to a $5-a-day credit for the 107 days he spent in jail. The State concedes that the defendant is entitled to some credit but disputes the defendant’s contention that the credited time should be 107 days. It argues that the defendant is only entitled to 37 days of credit.

The 70 days in dispute involve time the defendant spent in incarceration for violating his probation. The record shows that in February of 1989 the defendant was placed on probation after pleading guilty to the offense of theft. On September 19, 1989, the defendant admitted that he had violated his probation. As a result, the trial court sentenced him to a 70-day jail term while leaving the original probation terms in effect. On appeal the defendant argues that he should be given credit for this time. We disagree.

Any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed credit of $5 for each day so incarcerated. (Ill. Rev. Stat. 1989, ch. 38, par. 110—14.) However, time served as a sentence on a probation revocation will not be credited since that is an incident of probation rather than incarceration on a bailable offense. (People v. Leggans (1986), 140 Ill. App. 3d 268, 488 N.E.2d 614.) The apparent purpose of section 110 — 14 is to allow an incarcerated defendant to receive credit for time served prior to posting bail or going to trial. See People v. Rutledge (1985), 135 Ill. App. 3d 259, 481 N.E.2d 348; People v. Winkler (1979), 77 Ill. App. 3d 35, 395 N.E.2d 671.

In the case at hand, the 70 days the defendant served were not time spent incarcerated on a bailable offense. He was not awaiting trial, but rather was serving time on a sentence received for violating his probation. We therefore find that the defendant is entitled to only 37 days of credit, not 107 days as contended.

The defendant’s last argument on appeal is that the $30 fine imposed pursuant to the Violent Crime Victims Assistance Act (Ill. Rev. Stat. 1989, ch. 70, par. 510(b)) should be reduced to $25. The State concedes that the fine should be reduced but argues that it should be reduced to $28 and not $25. We agree with the State.

After September 18, 1986, there shall be added to each fine imposed upon conviction of any felony an additional penalty of $4 for each $40, or fraction thereof, of the fine imposed. Ill. Rev. Stat. 1989, ch. 70, par. 510(b).

In the case at hand, the defendant was fined $250. A penalty of $4 for each $40 results in a $24 fine for the first $240. However, another $4 must be added for the $10 fraction remaining, bringing the total fine to $28. As such, we find that the defendant’s $30 fine should be reduced to $28.

The judgment of the circuit court of Rock Island County is reversed and the cause is remanded for proceedings consistent with this decision.

Reversed and remanded with directions.

BARRY, P.J., and McCUSKEY, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. BENDER, Defendant-Appellant.
    Third District
    No. 3—91—0320
    Opinion filed April 2, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, David W. Bender, pled guilty to the offense of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—1). He was sentenced to four years of probation and thereafter violated his probation. Following a probation revocation hearing, the defendant was again sentenced to four years of probation. Shortly thereafter, he again violated his probation. After a hearing on that violation, the trial court sentenced the defendant to five years of imprisonment. The defendant appeals. We reverse and remand.

On appeal, the first issue we must address is the State’s contention that this court does not have jurisdiction of this cause. Specifically, the State argues that the defendant’s notice of appeal was premature because he failed to file a motion to withdraw his guilty plea. In addition, it argues that the notice was premature since it was filed prior to the entry of a formal written judgment order.

Where a defendant pleads guilty, is sentenced to probation, and thereafter has his probation revoked, he does not need to file a motion to withdraw his original guilty plea before appealing his sentence. (People v. Combs (1990), 197 Ill. App. 3d 758, 555 N.E.2d 66.) We therefore reject the State’s argument that the defendant needed to file a motion to withdraw his guilty plea before filing his notice of appeal.

We further note that in a criminal case, the pronouncement of the sentence is the judicial act which comprises the judgment of the court. The entry of the judgment order is a ministerial act and is merely evidence of the sentence. (People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.) The instant record shows that the defendant was sentenced on April 26, 1991, and that he filed his notice of appeal on April 29, 1991. The record also shows that although the written order was signed on May 1, 1991, the order itself contained a notation showing that the judgment was entered on April 26, 1991. Accordingly, we find that the act of signing the written order was merely ministerial and, as such, the sentencing order was final on April 26, 1991. In conclusion, we hold that the defendant’s appeal was timely filed and we therefore have jurisdiction to hear this appeal.

Turning to the merits of the case, we address the defendant’s argument that his sentence should be vacated and his cause remanded for resentencing. Specifically, he contends that the trial court was required to refer him for evaluation under the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. 111½, par. 6360—2).

The record shows that the defendant testified that his addiction to alcohol was at the root of his problems. He began drinking twice a week at the age of 16 and had steadily increased his weekly intake for the last four years. In September of 1990, he attempted suicide and was referred to Singer Zone Center for treatment. Upon his release from Singer Zone Center, it was recommended that he attend Alcoholics Anonymous.

In October of 1990, the defendant was sentenced to probation and ordered to undergo a substance abuse evaluation. Following an evaluation by Sinnissippi Center in December of 1990, it was recommended that the defendant attend Sinnissippi’s intensive outpatient alcohol abuse treatment program. The defendant failed to complete the program. The record also shows that both petitions filed to revoke the defendant’s probation charged him with offenses related to underage drinking.

Based on these facts, the defendant asked the trial court to sentence him to another term of probation with an order that he receive alcohol addiction counseling. The court, finding that the defendant did not have an alcohol problem, refused to refer the defendant for a TASC evaluation.

The purpose of the Alcoholism and Substance Abuse Act is to prevent drug abuse and encourage treatment and rehabilitation by allowing eligible defendants to elect rehabilitative treatment instead of traditional sentencing. (People v. Moore (1990), 206 Ill. App. 3d 769, 565 N.E.2d 154.) When an addict elects to undergo treatment, the court must order an examination by a designated program to determine whether he is an addict or alcoholic and is likely to be rehabilitated through treatment. (Ill. Rev. Stat. 1989, ch. 111½, par. 6360—2.) However, a defendant does not have an absolute right to the treatment alternative provided by the Act. The trial court has broad discretion to deny or grant the defendant’s request and its decision will not be reversed absent a showing that the court acted arbitrarily or abused its discretion. Factors to be considered are the defendant’s past record of drug abuse and the likelihood of rehabilitation through treatment under the program. People v. Hirschmann (1988), 175 Ill. App. 3d 150, 529 N.E.2d 760.

Here, we find that the trial court’s decision that the defendant did not have a problem with alcohol was arbitrary. The record clearly shows, and the State apparently concedes, that the defendant has a problem with alcohol. As such, even though the trial court has given the defendant repeated chances to straighten himself out, case law indicates that he may be entitled to yet another chance. Given the defendant’s eligibility for TASC, the law states that the trial court must have the defendant examined to determine if he is an addict and if he is likely to be rehabilitated through the treatment program.

Accordingly, we remand this cause to the extent that we find the trial court erred in refusing to have the defendant examined to determine if he was an addict and likely to be rehabilitated. Our decision does not reach the question of whether the defendant should be given TASC as an alternative to a prison term. That decision is for the trial court to make after it has evaluated the information concerning the defendant’s examination.

The defendant also argues on appeal that the trial court erred in sentencing him to five years of imprisonment. Specifically, he contends it failed to take into account his potential for rehabilitation.

Although we are remanding this case, we would note that the defendant’s sentence appears to be proper. Sentencing is largely a matter of judicial discretion, and absent an abuse of that discretion, it will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Here, we note that the defendant has demonstrated little rehabilitative potential. In the instant case he was given probation twice and violated it both times. In addition, the record shows that he has an extensive history of criminal conduct and that he has been constantly placed on probation for those offenses. Obviously, probation as punishment has failed to deter the defendant’s criminal conduct. As such, we cannot say that the trial court failed to adequately weigh the defendant’s rehabilitative potential.

The judgment of the circuit court of Whiteside County is reversed, and the cause is remanded for proceedings consistent with this decision.

Reversed and remanded.

BARRY, P.J., and HAASE, J., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK SOLES, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE GALINSKI, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND KLAWONN, Defendant-Appellant.
    Second District
    Nos. 2-90-0480, 2-90-0517, 2-90-0781 through 2—90—0784 cons.
    Opinion filed April 1, 1992.
    Rehearing denied May 1, 1992.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant Mark Soles.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

In separate cases, defendants Mark Soles, Wayne Galinski, and Raymond Klawonn entered pleas of guilty to various offenses. Galinski was sentenced to a term of imprisonment; the other defendants were originally placed on probation but were sentenced to terms of imprisonment after admitting to violations of their probation. The defendants all filed motions to reconsider their sentences within 30 days of sentencing. Their appeals have been consolidated because they raise a common issue, whether the trial judge erred by refusing to consider these motions. We reverse and remand with directions to the trial court to allow each defendant to present his motion to reconsider and to rule on the merits of each motion.

Defendant Galinski was charged with home invasion, aggravated criminal sexual assault, and residential burglary. He entered into a plea agreement with the State pursuant to which he pleaded guilty to home invasion, the other two counts were dropped, and the sentence would not exceed 20 years. After Galinski entered his plea the trial court sentenced him to a 20-year term of imprisonment.

Within 30 days of sentencing, Galinski filed -with the trial court a motion to reconsider his sentence. When defendant’s attorney attempted to present the motion, the trial judge stated that he would not hear it as there was nothing under the law which required him to reconsider a sentence. The judge also stated that he believed it was unfair to allow reconsideration of a sentence resulting from a negotiated plea unless the defendant also moves to withdraw the plea.

In People v. Stacey (1977), 68 Ill. 2d 261, the court interpreted Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) as requiring all criminal defendants who wish to appeal after entering pleas of guilty to first present motions to withdraw their guilty pleas to the trial court even if they only sought to challenge the sentence that was imposed. (Stacey, 68 Ill. 2d at 265-67.) More recently, however, our supreme court held that a motion to withdraw a guilty plea would not be a requisite for an appeal if a defendant had presented a motion to reconsider his or her sentence and was only challenging the sentence on appeal. (People v. Wilk (1988), 124 Ill. 2d 93, 110.) The court noted in Wilk that the trial judge “had the opportunity to reconsider the appropriateness of the sentence imposed and to correct errors made, if any.” (Wilk, 124 Ill. 2d at 110.) The court also stated that since the two defendants in question “were not appealing their guilty pleas, it was not necessary for them to file a Rule 604(d) motion.” 124 Ill. 2d at 110.

Relying on Wilk, our supreme court determined that, in the above circumstances, a motion to reconsider the sentence imposed is a requisite to an appeal challenging the sentence. (People v. Wallace (1991), 143 Ill. 2d 59, 61.) The court cited Wilk for the proposition that such a motion is necessary to enable the trial court to correct any errors. Wallace, 143 Ill. 2d at 61.

The trial court’s refusal to hear Galinski’s motion to reconsider is completely inconsistent with Wilk and Wallace, which are premised upon the theory that trial courts should have the opportunity to correct any potential errors in sentencing before an appeal is taken. The trial court’s refusal to hear Galinski’s motion deprived it of any such opportunity. The requirement that a motion to reconsider be presented to the trial court before the sentence imposed after a guilty plea is appealed would be rather hollow if the trial court was not required to consider the merits of the motion.

The State argues that the rationale of Wilk and Wallace should not be applied in cases involving agreements to plead guilty in exchange for a limit on the sentence. The State contends that, by entering into the plea agreement, Galinski agreed to accept any sentence of 20 years or less. Therefore he should not be able to challenge his sentence without filing a motion to withdraw his guilty plea.

There is no language in Wilk or Wallace tending to support the State’s position. As we have seen, the court stated in Wilk that because the defendants were not appealing their guilty pleas they were not required to file motions to withdraw the pleas. (Wilk, 124 Ill. 2d at 110.) Likewise, Galinski is not appealing his guilty plea; therefore, under Wilk, he was not required to file a motion to withdraw his plea. We reject the State’s contention to the contrary. We also disagree with the State’s argument that, by entering into the plea agreement, Galinski agreed to accept any sentence of 20 years or less and conclude instead that he agreed to accept any such sentence if the trial court properly exercised its discretion in imposing it.

Additionally, section 5 — 8—1(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c)) states that “[a] motion to reduce a sentence may be made *** within 30 days after the sentence is imposed.” This provision further states that if such a motion is timely filed and the movant diligently seeks a ruling, “the court shall thereafter decide such motion within a reasonable time.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c).) The word “shall” in a statute denotes a mandatory obligation unless the context in which the word appears indicates otherwise. (People v. Richardson (1984), 104 Ill. 2d 8, 15.) Because the language of section 5 — 8—1(c) does not indicate otherwise, we conclude that it requires trial courts to consider the merits of motions to reconsider and reduce sentences which are timely filed if the movants are diligent in seeking rulings. In so holding we agree with the statement of the court in People v. Chestnut (1973), 15 Ill. App. 3d 188, that “[a] motion made in orderly fashion by counsel for defendant should be given consideration and the court should rule upon it.” Chestnut, 15 Ill. App. 3d at 190.

Defendants Klawonn and Soles both pleaded guilty to burglary and were originally sentenced to probation. After admitting to violations of the conditions of their probation, both were sentenced to the penitentiary. Within 30 days of sentencing both filed motions to reconsider their sentences. In Klawonn’s case when his attorney attempted to present the motion, the trial judge stated that he would not give him a hearing on it.

Soles argues on appeal that when his attorney attempted to present his motion to reconsider, the trial judge refused to consider the motion. The State argues to the contrary. The record clearly supports Soles with respect to this issue. When Soles’ attorney attempted to present the motion, the trial judge stated, “Motion to reconsider is not denied. A hearing on reconsideration is not allowed.” It is therefore evident that the trial judge refused to make a ruling on the merits of the motion.

The State argues that Wilk and Wallace do not apply to the cases involving these two defendants because appeals from sentences imposed after probation revocations are governed by Supreme Court Rule 604(b) (134 Ill. 2d R. 604(b)), rather than Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). Even if the State’s argument is correct, section 5 — 8—1(c) of the Code still requires trial courts to consider the merits of and rule upon timely filed motions to reconsider and reduce sentences if the defendant’s attorney is diligent in seeking a ruling. In all three cases that we are considering, the motions to reconsider sentence were filed timely and defense counsel was diligent in seeking a ruling on each motion. The trial court erred in each case by refusing to consider the merits of the motions.

For the above reasons the orders of the circuit court of Lake County refusing to consider the merits of defendants’ motions are reversed. The causes are remanded with directions to the circuit court to allow each defendant to present his motion for reconsideration and to rule on the merits of each motion.

Reversed and remanded with directions.

UNVERZAGT and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
      In re ESTATE OF OPAL WEDEBERG, Deceased (William Pollock et al., Petitioners-Appellees, v. ROCK GOERTZ et al., Respondents (Darleen Burkhart et al., Respondents-Appellants)).
    Fourth District
    No. 4—91—0483
    Opinion filed March 19, 1992.

      Bruce J. Biagini, of Flack, McRaven & Stephens, of Macomb, for appellant Union National Bank of Macomb.
    Robert Stuart, Jr., and Emmet A. Fairfield, both of Brown, Hay & Stephens, of Springfield, for other appellants.
    March & McMillan, P.C., of Macomb, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Section 4 — 3 of the Probate Act of 1975 (Act) requires that for a writing to be a valid will, it must be “signed by the testator or by some person in [her] presence and by [her] direction” (Ill. Rev. Stat. 1987, ch. 110½, par. 4—3). This case concerns a document admittedly handwritten by a decedent in all respects except in connection with the signature of witnesses. No contention is made that the document was signed at the request of the decedent by another person. The only possible indication that the decedent signed it appears at the top of the first page of the document where the decedent wrote the words “Opal Wedeberg’s WiH.” We hold that under the evidence here, the proponents of this document as the last will of the decedent failed, as a matter of law, to establish that the document meets the signature requirement of section 4 — 3 of the Act.

Opal Wedeberg died on September 4, 1989. On September 13, 1989, two documents were filed for probate with the circuit court of Sangamon County as the last will of that decedent. One, dated March 20, 1980, purported to be the last will of decedent and a codicil thereto of that date. They were filed by Union National Bank of Macomb (Union National), named as executor, and each, admittedly, met all formal requirements for admission to probate. The other document, filed by Loren K. Robinson, was the handwritten instrument previously described. It was dated January 2, 1988. After a hearing, the court entered separate orders on September 13, 1989, which (1) admitted the 1980 document to probate; and (2) denied admission of the 1988 document. Union National was appointed executor.

On February 26, 1990, petitioners William Pollock and Mary Pollock filed a two-count petition with the circuit court. Count I was brought pursuant to section 8 — 2 of the Act (Ill. Rev. Stat. 1989, ch. 110½, par. 8—2) contesting denial of admission of the 1988 document to probate. Count II sought a declaration that the 1980 instrument was revoked by the 1988 one to the extent that their provisions conflicted. Various parties filed motions for summary judgment seeking to uphold or to overturn the earlier disposition of the petitions for probate. On May 7, 1991, the court entered a summary judgment in favor of petitioners, finding the 1988 instrument was the will of the decedent and predominated over any inconsistent provisions in the 1980 instrument. All other requests for summary judgment were denied. Respondents have appealed. We reverse and remand, directing entry of summary judgment finding the 1980 instrument is the sole last will of the decedent.

The purported 1988 will is a handwritten document containing four pages with writing on both the front and the back of the first three pages. It begins with the following words in longhand:

“Opal Wedeberg’s Will Dated 1-2-88”

It then contains various attempts at making gifts, some of which are vaguely stated. The back of the third sheet contains nothing except, at the bottom, the following appears in longhand:

“Witnesses:
Marcia Maisenbacher
Margaret Crabtree Executors:
Loren K. Robinson
Power of Attorney
Marge Garrard Russell Garrard”

The undisputed evidence properly before the circuit court when it ruled on the motions for summary judgment showed that the signatures of Maisenbacher and Crabtree appearing under the designation “Witnesses” were their signatures, and at least all of the document appearing prior to the back of the third sheet was written by decedent. Undisputed deposition testimony of those attesting witnesses was that the decedent had told them the 1988 document was her will and asked them to be witnesses. No evidence was presented that the decedent ever told anyone that her reference to her name in the heading of the 1988 document was intended to be her signature to that instrument. Some evidence also indicated that the words “Power of Attorney” and the name “Marge Garrard” had been added to the instrument after the signing by the witnesses.

Under the terms of section 2 — 1005(c) of the Code of Civil Procedure, motions for summary judgment shall be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Under the undisputed evidence here and the precedent we deem to be controlling, we conclude that the form of the 1988 instrument is dispositive of the case and, as we have indicated, we hold the instrument does not meet the signature requirements of section 4 — 3 of the Act. No Illinois decision has permitted probate of a document excusing the requirements of section 4 — 3 because the document was written entirely by the hand of the testator, i.e, a holographic will.

In Bamberger v. Barbour (1929), 335 Ill. 458, 458, 167 N.E. 122, 123, a purported "will, admittedly in the hand of the purported testator, stated:

“ ‘CHICAGO June U-1927
[ ]To whom it may concern:
[]I — Edwin Durand Bamberger bequeath all of my property both Real Estate and personal to my wife Lillian Dorothy Bamberger. To her also and alone I bequeath all my life Insurance of whatever kind — . She to serve as sole executrix without bond. Witness JAMES M. NORTHCOTT
Witness BLANCHE P. McKINNIE.’ ” (Emphasis in original.)

The circuit court admitted the document to probate, but the supreme court reversed on appeal. The supreme court explained that whether the appearance of the name of the purported testator, written in that person’s hand, in the first part of the document constitutes the signature to a will depends upon the drafter’s intent which can be proved by parol evidence. The court then found no extrinsic evidence of that intent had been shown. The court then concluded:

“There is one well known purpose in placing the name of the testator in the exordium clause — it is by way of description. It cannot be said, therefore, that the deceased had no other purpose or intent in placing his name where it appears in this instrument than to make it his signature. The evidence discloses no statement of the deceased that the name as written by him was intended as his signature and no declaration of the deceased after the instrument was written that it was his will.” Bamberger, 335 Ill. at 460, 167 N.E. at 123.

Nine years after the Bamberger decision, the supreme court decided Hoffman v. Hoffman (1938), 370 Ill. 176, 18 N.E.2d 209. There, a holographic document stated:

“ ‘Wrote the 18th of April, 1937.
[ ]I, Miss Mary E. Hoffman, I am going to write my will on this paper so if something shought [sic] happen to me all that belons [sic] to me I will to my brother Wallie S. Hoffman, the brick house[,] the furniture and *** the money I have coming if the big house will get saled [sic]. I want to let you know that this is my own handwriting
My witness [sic] below
Ed Bien
Henry Rodenberg Paulina Rodenberg’ ”
Hoffman, 370 Ill. at 177, 18 N.E.2d at 209.

The Hoffman court affirmed a circuit court order denying probate to the purported will on the basis of a lack of signature. The court cited Bamberger, but in Hoffman, unlike in Bamberger, evidence was presented that the decedent told the witnesses that she intended the instrument to be her will. The language 'we have quoted from Bamberger seems to indicate that court might have ruled differently if the purported testator there had identified the writing as her will. The Hoffman court stated: “[t]he decisive question is not whether the deceased intended the instrument to be her will, but whether she intended the name appearing in the exordium clause to be her signature.” (Emphasis added.) (Hoffman, 370 Ill. at 179, 18 N.E.2d at 210.) As Hoffman is the later supreme court decision, its definite statement concerning the decedent’s intent controls, as precedent, over any inference from the language of Bamberger.

The proponents of the 1988 document contend that the statements of the decedent to the two witnesses that the document was her will is sufficient to properly identify the heading which stated “Opal Wedeberg’s Will” as the decedent’s intended signature. Their theory begins with the case of Conway v. Conway (1958), 14 Ill. 2d 461, 153 N.E.2d 11. In that case a document bearing the signature of the decedent at the end was denied probate by the trial court. One of the witnesses listed in the will testified he signed as a witness one day before the date the will stated it was executed. Both witnesses testified that when they signed as witnesses, they could not see the decedent’s name on the will because of the way he had folded the document. Neither testified that they saw the decedent sign the document, and neither testified he stated the signature was his. Nevertheless, the supreme court reversed, directing the trial court declare the document a valid will.

The Conway court placed great emphasis upon the fact that the purported will contained an attestation clause duly signed by the attesting witnesses which set forth compliance with all of the requirements of section 43 of the then Probate Act (Ill. Rev. Stat. 1957, ch. 3, par. 194), which contained provisions very similar to section 4 — 3 of the Act. The court stated:

“The probate of a will cannot be made to depend upon the recollection or veracity of subscribing witnesses, for if it were necessary for them to remember and testify to the fact that all the prescribed formalities were in fact complied with very few wills could be upheld. The law wisely requires such instruments to be executed and attested with precautions which will usually guard against fraud, and if the attestation clause shows on its face that all the forms required by law have been met, and the signatures on the instrument are admittedly genuine, the presumption of due execution must prevail unless clear and affirmative proof shows the contrary. If it is merely doubtful from the evidence whether the requirements have been complied with, the presumption arising from the attestation clause is not overcome.” Conway, 14 Ill. 2d at 466-67, 153 N.E.2d at 14.

The other case relied upon by the proponents of the 1988 instrument is In re Estate of Carroll (1989), 192 Ill. App. 3d 202, 548 N.E.2d 650, which concerns facts more nearly like those here. There, the purported will was on a printed form containing blanks, some of which had been filled in. The heading stated “ ‘LAST WILL AND TESTAMENT.’ ” (Carroll, 192 Ill. App. 3d at 204, 548 N.E.2d at 651.) The only mention of the name of the decedent was in the first line after the heading which stated “ T, Genevieve B[.] Carroll, of ***, declare this to be my last WILL and TESTAMENT ***.’ ” (Carroll, 192 Ill. App. 3d at 205, 548 N.E.2d at 651.) Presumably, the name was written in the hand of the decedent. None of the three witnesses to the document could remember the details of the execution of the document. The circuit court denied probate of the instrument.

The appellate court in Carroll reversed, relying in part upon the decision in Conway and finding the circuit court decision contrary to the manifest weight of the evidence. The Carroll document, although not signed in the usual place for a testator to use, contained a fully executed attestation clause, which stated:

“ ‘This instrument was, on the date thereof, signed, sealed, published and declared by the Testator as and for her Last Will and Testament, in our presence, who at her request and in her presence and in the presence of each of us, have subscribed our names hereto as witnesses thereof. And do hereby certify that at the time of the execution thereof the Testator was of sound and disposing mind and memory.’ ” (Carroll, 192 Ill. App. 3d at 205, 548 N.E.2d at 651.)

The appellate court deemed the execution of this clause was prima facie evidence of the proper execution of the will, including the signature.

The Carroll court further reasoned that the format of the document before it indicated that the decedent intended the placement of her name in the first line to constitute her signature. As indications of that intent, the court noted (1) the statement in the attestation clause that the decedent had declared the instrument to be her will; (2) the title stating “ ‘LAST WILL AND TESTAMENT’ ”; (3) the direction to pay debts and funeral expenses; (4) the provision for gifts; (5) the naming of an executor; and (6) a provision prior to the attestation clause wherein the form stated “ ‘IN WITNESS WHEREOF I have hereunto set my hand and seal’ ” (Carroll, 192 Ill. App. 3d at 206, 548 N.E.2d at 652), with a blank left for the date. Carroll, 192 Ill. App. 3d at 205-06, 548 N.E.2d at 651-52.

The facts in this case differ greatly from those in Carroll. Here, the document contained no attestation clause giving rise to a presumption of regularity. No statement was made that the decedent was or had set her hand or signature to the document. The only time the decedent’s name was used was with reference to whose will it was (“Opal Wedeberg’s Will”). This use of the name is far less indicative of an intent that the name was a signature than the language “ T, Genevieve B[.] Carroll *** declare this to be my last WILL and TESTAMENT.’ ” Moreover, the Carroll opinion does not mention Hoffman. The latter opinion makes clear that statements by a purported testator that a document is intended as his or her will are not evidence that by writing his or name on the document he or she intended that writing to be a signature to the instrument. To the extent that Carroll diverges from the holding in Hoffman, we must follow Hoffman.

Following the holding in Hoffman, we find no circumstances which indicate that when the decedent headed the 1988 instrument with the words “Opal Wedeberg’s Will” she intended those words or the first two of them to constitute her signature to the document. The indications are even weaker here than in Bamberger, where the decedent’s name had been written by him in the declaration of some gifts.

In addition to relying upon the failure of the 1988 document to meet the signature requirements of section 4 — 3 of the Act, the proponents of the 1980 instrument as the only will of decedent further maintain the 1988 document was also not shown to be properly attested. Because of our decision in regard to the signature, we need not pass on the attestation issue. For the same reasons we neéd not pass upon possible problems arising from post-execution alteration of the 1988 document. We reverse the judgment appealed and remand to the circuit court with directions to enter summary judgment finding the 1980 document together with its codicil of the same date is the last will and testament of Opal Wedeberg, deceased.

Reversed and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OKELL J. SIZEMORE, JR., Defendant-Appellant.
    Fourth District
    No. 4—91—0532
    Opinion filed March 31, 1992.
    STEIGMANN, J., specially concurring in part and dissenting in part.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial in the circuit court of Woodford County, defendant Okell J. Sizemore was sentenced to a term of imprisonment of 90 months on his conviction for criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12—13(a)(4).) Defendant was given credit for 71 days served in custody prior to sentencing.

On appeal, defendant raises two issues. Defendant argues he should have been given credit for 74 days served in the county jail as a result of the charge in this case. Defendant also argues the trial court improperly sent to the jury the written statement of defendant without redacting those portions which related to crimes for which he was not on trial or, in the alternative, that it was ineffective assistance of counsel for his counsel to fail to move to delete portions of the statement or to request a limiting instruction. We affirm.

The 15-year-old victim, K.R, lived with her mother, her brother and defendant in a family relationship. Defendant was the boyfriend of the victim’s mother. The testimony established that he was born on January 16, 1947, and that he had lived with the victim and her family for five years.

On October 18 and 19, 1990, the victim stayed home from school because she was ill. The victim testified that on one of those days, while she was watching television, defendant approached her and initiated sexual contact which culminated in intercourse. K.P. did not resist because defendant had beaten her on previous occasions and she was afraid of another beating.

In addition, there was evidence concerning the statements defendant made to the authorities after he was arrested in which he admitted the sexual assault. In the written statement defendant gave to Josh Hendrix, an investigator for the Illinois Department of Children and Family Services, defendant described in detail the incident for which he was charged and corrected what he described as inaccuracies in the victim’s description of the incident.

The defense attempted to attack the victim’s credibility through the testimony of defendant’s son, who stated he and the victim went to school on the days in question. In surrebuttal, the victim’s mother testified defendant’s son was no longer living with them in October 1990. In rebuttal, defendant’s son testified he had a court date on October 24, 1990, to which he was driven by defendant and for which he provided defendant’s address as his own. One of the neighbors also testified she saw defendant’s son in the home during the week of October 15,1990.

Defendant testified the statements he made, and in particular the written statement, were fabricated. He explained he was depressed, nervous, and upset when he was taken into custody. He and the victim’s mother had recently broken off their relationship for financial reasons unrelated to the incident for which he was being tried. He had not eaten or slept properly for the month prior to his arrest. He loved the victim’s mother and did not want to make her or her daughter out to be liars. He thought the victim’s mother “wanted me guilty, and I wanted to be guilty for her.”

In discussing what exhibits should be sent to the jury, defendant objected with regard to the written statement on the grounds previously asserted in a motion to suppress, but not for the reason now argued on appeal. Nor did defendant include this issue in his motion for a new trial. For these reasons, the issue is waived. People v. Enoch (1988), 122 Ill. 2d 176, 185-92, 522 N.E.2d 1124, 1129-32, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419.

Defendant does not argue that the giving of the written statement to the jury is plain error. (134 Ill. 2d R. 615(a).) Instead, defendant would have this court consider the issue by ascertaining whether he received ineffective assistance of counsel.

“The standards for evaluating ineffective assistance of counsel are set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. In order to establish ineffective assistance of counsel so as to require reversal of a conviction, the defendant must demonstrate counsel’s performance was so deficient that the defense attorney was not functioning as ‘counsel’ as guaranteed by the sixth amendment of the United States Constitution. Defendant must show the deficient performance of counsel prejudiced the defense, deprived defendant of a fair trial, fell below an objective standard of reasonableness, and that the result would probably have been different had counsel not provided ineffective assistance. Allegations arising from matters of judgment or trial strategy will not support a claim of ineffective assistance of counsel.” (People v. Clark (1991), 207 Ill. App. 3d 439, 449-50, 565 N.E.2d 1373, 1380.)

Although the defendant’s written statement, which included references to other sexual acts between defendant and the victim for which defendant was not being tried, could not have been admitted to establish defendant’s propensity to commit the charged offense, this court has previously determined that evidence of other sexual acts with a victim is admissible to show the relationship and familiarity of the parties and to corroborate the victim’s testimony. Even when the fact that the defendant and victim had a continuing relationship or knew each other is not an issue, such evidence is admissible to demonstrate the intimacy of the relationship. (People v. Cregar (1988), 172 Ill. App. 3d 807, 821-22, 526 N.E.2d 1376, 1386.) Nevertheless, defendant argues his attorney should have sought to have the trial court edit the statement so as to eliminate references to other criminal acts or to seek an instruction which would limit the use of the other crimes evidence by the jury. Defendant suggests Blinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) could be modified to state the appropriate limited purpose for the evidence.

The written statement included an admission by defendant that he had sexual relations with the victim 30 or 40 times during a three- to four-year period. A number of incidents were described in detail including one in which the victim allegedly crawled through a bathroom window in order to have sex with the defendant while he was on the toilet. In her argument to the jury, the first point defense counsel made was that the jurors were going to see the statement. She brought to the jurors’ attention the feelings defendant had toward the victim’s mother and the stress he felt as a result of the discontinuance of their relationship. She pointed to the fact that defendant had been considered possibly suicidal after his arrest and that special precautions-were taken with him.

This argument ties in with defendant’s testimony that the statement was fabricated because, in a confused way, he felt he was accommodating the woman he loved. Defense counsel may well have believed that the jurors, after reading the statement, would conclude that it must have been fabricated because it was so bizarre. Defense counsel might also have believed that a limiting instruction to the jury would have restricted the inferences she would have the jury draw from the written statement, including that the victim was not only a willing participant, but initiated sexual encounters with defendant. Therefore, we conclude the decisions not to object to the written statement and to seek a limiting instruction were tactical decisions which are not subject to second guessing by this court under the guise of ineffective assistance of counsel analysis.

Equally important is that, even had defense counsel’s representation of defendant fallen below an objective standard of reasonableness, defendant has failed to demonstrate that the result would probably have been different had an objection been made or a limiting instruction sought. Throughout his entire testimony, defendant never denied he had intercourse with the victim on the occasion about which she testified. His entire testimony focused on attacking the statements he gave to the authorities after his arrest and the credibility of the victim by insinuating that there was no time on the date in question that he would have been alone with the victim. Testifying that a statement which includes an admission is fabricated is not the equivalent of a denial of the victim’s accusations where the defendant’s statement to authorities was made in part to correct “inaccuracies” in the victim’s version of the incident and included references to other sexual encounters to which the victim did not refer.

The defendant must show that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Stewart (1990), 141 Ill. 2d 107, 118, 565 N.E.2d 968, 973, quoting Strickland v. Washington (1984), 466 U.S. 688, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.) Defendant has not demonstrated that the outcome in this case would probably have been different had defense counsel successfully objected to the jury viewing the entire statement and, failing that, sought a limiting instruction on the jury’s use of the references to other offenses contained therein.

As to the remaining issue, the State concedes defendant is entitled to 74 days’ credit against his sentence. The presentence report (PSI) shows, “The defendant was in custody in the Woodford County Jail from December 21, 1990 until March 2, 1991; therefore the defendant was incarcerated for 71 days.” This statement was incorrect on its face and the parties would know that. Even accepting the dates shown in the PSI, it was 72 days. The parties now agree that the defendant was in custody as follows:

December 21-31 11 days
January 31 days
February 28 days
March 1-4 4 days
TOTAL 74 days

The trial court did grant the 71 days, which was incorrect on its face, according to the PSI dates of incarceration. Although this issue is not raised in the trial court, such issues may be raised for the first time on appeal. (People v. Donnelly (1992), 226 Ill. App. 3d 771.) In People v. Childs (1992), 226 Ill. App. 3d 915, 922-23, this court deemed the issue of whether the defendant was entitled to the $5-per-diem credit against his sentence not to be waived because defendant had not received a statutorily required written notice. (Ill. Rev. Stat. 1989, ch. 38, par. 110—14.) We find no substantive distinction between Childs and the case at bar even though the statute for the $5 credit requires notice be given to defendant by the circuit clerk. That statute was not a secret, and defendant in Childs could have raised the per diem issue in the trial court.

For the foregoing reasons, the judgment of the circuit court of Woodford County is affirmed. However, that portion of the sentencing order which inaccurately states the sentence credit is reversed and the cause is remanded to the circuit court to amend the sentencing order to reflect the appropriate sentence credit.

Affirmed in part, reversed in part, and remanded with directions.

LUND, J., concurs.

JUSTICE STEIGMANN,

specially concurring in part and dissenting in part:

For the reasons stated in my opinion specially concurring in part and dissenting in part in People v. Donnelly (1992), 226 Ill. App. 3d 771, 779 (Steigmann, J., concurring in part and dissenting in part), I respectfully dissent from that portion of the order in this case that reverses the sentencing order and remands to the circuit court with directions to amend the sentencing order to reflect the appropriate credit for time served.

The presentence report in the present case contained specific information as to the dates defendant was in custody for which he was entitled to be given credit against the sentence subsequently imposed. At his sentencing hearing, defendant failed to complain about any inaccuracies in the presentence report regarding those dates or about how much credit the court gave him for time served. Instead, he raises these issues for the first time on appeal, and we ought not permit him to do so. I dissent.