author: PRESIDING JUSTICE STOUDER

text:
    QUENTIN H. CASTRICONE et al., Plaintiffs-Appellees, v. FRANK MICHAUD, Defendant-Appellant.
    Third District
    No. 3-91-0278
    Opinion filed December 18, 1991.
    Brian S. Nelson, of Katz, McAndrews, Balch, Lefstein & Fieweger, P.C., of Rock Island (Stuart R. Lefstein, of counsel), for appellant.
    Anderson & Nelson, of Rock Island (Jack L. Brooks, of counsel), for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Frank Michaud, appeals from a judgment entered in favor of the plaintiffs, Quentin H. Castricone and Marcia A. Castricone. The only issue presented is whether the trial court properly calculated the amount of the plaintiffs’ damages. We agree the trial court erred, and modify the judgment.

The defendant, a building contractor, entered into a contract to build a single-family home for the plaintiffs. Under the contract the plaintiffs were to pay the defendant a total of $89,000. As construction proceeded, disputes arose over the quality of the workmanship and the specifications of the contract. The defendant ceased working on the project in October of 1987. The plaintiffs brought a complaint contending, inter alia, that the defendant breached the contract. The defendant counterclaimed for the unpaid balance on the contract.

At trial, it was shown the plaintiffs expended $27,407.88 to finish the home, and to repair and replace defective construction. The trial court stated it had never seen such poor workmanship and found the defendant had breached the contract. The court held there was not substantial performance of the contract on the part of the defendant. The court therefore denied the defendant’s counterclaim and held in favor of the plaintiffs.

The trial court next addressed the issue of the measure of the plaintiffs’ damages. The court noted the general rule that the measure of damages is the difference between the total cost of completing the building less the contract price. However, citing W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119, 503 N.E.2d 233, the trial court held this measure of damages did not apply in cases where there was not substantial performance. The parties had agreed that the plaintiffs paid the defendant a total of $76,400. The trial court found this sum sufficient to compensate the defendant for the work he had done. Therefore, the trial court awarded the plaintiffs the entire cost incurred in completing and repairing the house, $27,407.88, plus costs in the amount of $1,872.99.

On appeal, the defendant contends the trial court erred in not offsetting the damage award by the amount remaining unpaid on the contract. The plaintiffs maintain the general rule of damages does not apply where the defendant has failed to substantially perform the contract.

As a general rule, damages for breach of contract should place an aggrieved party in the position they would have been in had the contract been performed. (Kalal v. Goldblatt Brothers, Inc. (1977), 53 Ill. App. 3d 109, 368 N.E.2d 671.) In Ross v. Danter Associates, Inc. (1968), 102 Ill. App. 2d 354, 370, 242 N.E.2d 330, this court stated the measure of damages in this type of case is the “difference between the cost of constructing, by contract, the building the contractor agreed to put up, and the fair cost market price of erecting such building.”

In Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565, the court stated:

“As a general rule, the measure of damages, or the credit due the purchaser, when performance by the builder has been less than full performance, is the cost of correcting the defects or completing the omission, rather than the difference in value between what ought to have been done in full performance and what was actually done. But this general rule only applies where the correction or completion would not involve unreasonable destruction of the work done by the contractor and the cost thereof would not be grossly disproportionate to the results obtained. If to repair the defects or omissions would require a substantial tearing down and rebuilding of the structure, the measure of damages is the difference in value between the work if it had been performed according to the contract and that which was actually performed.” Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674, 356 N.E.2d 564, 570.

Thus, where there has been less than full performance the general measure of damages is the cost of repairing the defects and/or completing the project. However, in cases where the repairs would entail substantial tearing down of the contractor’s work and/ or the costs are disproportionate to the contract price, the measure of damages is determined by the diminution in the value of the property resulting from the defects. See Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651; Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 435 N.E.2d 953; Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 430 N.E.2d 191.

Recently in Wells v. Minor (1991), 219 Ill. App. 3d 32, 578 N.E.2d 1337, the fourth district held that the contract price limitation rule applied to damages measured by the cost of completion/repairs, and diminution of value.

In the instant case, we find under the general rule the total cost of completing the home must be netted against the original contract price. The plaintiffs contracted for an $89,000 home. The measure of their damages is the amount in excess of $89,000 which they incurred in completing the home.

The trial court found the contract price limitation rule applied only if there was substantial performance on the part of the builder. We find the trial court’s reliance on W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1986), 115 Ill. 2d 119, 503 N.E.2d 233, to support its reasoning to be misplaced.

In Erickson, the contractor brought an action to recover monies due under a construction contract. One of the issues before the supreme court was whether the plaintiff had substantially performed under the terms of the contract. The court stated that a purchaser who receives substantial performance of a building contract must pay the price bargained for, less an offset for defects in what he received as compared to what strict performance would have given him. Since the plaintiff had substantially performed, he had a right to the contract price less the cost of any defects. The defendant had paid $150,000. The supreme court found that the record was unclear as to the total amount due under the contract and remanded for further proceedings.

Erickson involved the question of the contractor’s right to recover monies due under the contract. If the contractor substantially performed, it had a right to recover the full amount due, less an offset for defects. Had the contractor failed to render substantial performance, its recovery would have been limited to reasonable compensation for value received by the purchaser. (See Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565.) In Erickson the issue of the purchaser’s damages was not addressed. The builder’s right to recover monies due under the contract is separate from the issue of the purchaser’s measure of damages. In the instant case the trial court confused these two issues.

Here, the trial court found that the defendant had failed to substantially perform under the contract, and that the $76,400 he had received adequately compensated him for the work he rendered. The defendant’s level of performance, however, only relates to the plaintiffs’ measure of damages, vis-a-vis whether the damages should be calculated by cost of completion/repairs or diminution of value. Wells v. Minor (1991), 219 Ill. App. 3d 32, 578 N.E.2d 1337, holds and we agree that the contract price limitation rule applies to cases in which the purchaser’s damages are measured using the cost of completion/repairs standard.

On appeal, the plaintiffs argue along the same lines as the reasoning of the trial court, that since the trial court found there was not substantial performance of the contract, the defendant may not recover for amounts due under the contract. Again, the plaintiffs’ argument confuses the issue of proper compensation for the defendant’s work with the measure of their damages. They point to the fact that the trial court found the $76,400 paid to the defendant sufficiently compensated him for the work he had performed. However, as stated above, this issue is not determinative of the application of the contract price limitation rule. Measuring the plaintiffs’ damages as the difference between the cost of completing/repairing the house and the contract price will not result in further compensation to the defendant. He will still receive only $76,400. They in turn will receive an $89,000 home for $89,000.

In the instant case, despite the finding that the defendant had failed to substantially perform, the plaintiffs’ damages were calculated using evidence of the cost of completion and repairs. The plaintiffs’ recovery is limited to the amount they expended in completing and repairing their home which exceeded the contract price of $89,000. The plaintiffs expended a total of $103,807.88 for their home ($76,400 paid to defendant and $27,407.88 in repair and completion costs). Therefore, the plaintiffs were damaged by the defendant’s breach to the extent of $14,807.88. There is no challenge to the award of costs in the amount of $1,872.99.

For the forgoing reasons, under the authority of Supreme Court Rule 615(b) (134 Ill. 2d R. 615(b)), we modify the judgment of the circuit court of Rock Island County to reduce the amount of the judgment to $16,680.87. In all other respects the judgment is affirmed.

Affirmed as modified.

GORMAN and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES E. WATSON, JR., Defendant-Appellant.
    Third District
    No. 3 — 90—0269
    Opinion filed December 18, 1991.

      Daniel Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

A jury convicted the defendant, James E. Watson, Jr., of attempted murder, armed robbery, and conspiracy to commit armed robbery (111. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1, 8 — 2, 18 — 2). He was subsequently sentenced to concurrent 18-year terms of imprisonment for attempted murder and armed robbery. He appeals, and we affirm.

The record shows that following his trial, the defendant filed a motion for a new trial, alleging the existence of newly discovered evidence. The newly discovered evidence consisted of a letter written by attorney John J. O’Gara, the public defender of Knox County. The notion stated that on October 3, 1989, O’Gara, who had previously been appointed to represent the defendant in three unrelated misdemeanor cases, heard that the defendant had been involved in some type of serious altercation. O’Gara’s letter informed various local law enforcement agencies that he wanted to confer with the defendant prior to any questioning by the police. However, even though the police were aware of the letter, they did not contact O’Gara prior to interviewing the defendant. During the interview, the defendant made incriminating statements.

The motion further alleged that had the defendant been aware of the existence of the letter he would have filed a motion to suppress his incriminating statements based on the violation of his constitutional right to counsel. Following an evidentiary hearing, the trial court denied the defendant’s motion, finding that the interrogation was noncustodial and, as such, the defendant’s rights were not violated.

On appeal, the defendant first argues that the trial court erred in finding that he was not in custody when he gave his statement.

Custodial interrogation, which the Miranda decision governs, means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of the police. (People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226.) Factors to be considered in this inquiry include the location, time, length, mood, and mode of the interrogation, the number of police officers present, and any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest. Also included is the age, intelligence, and mental makeup of the accused. (People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) Finally, the fact that a defendant was given Miranda warnings does not automatically establish that the defendant was taken into custody or placed under arrest. People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979.

In the case at hand, the record shows that at 10 a.m. on October 9, 1989, the police went to the defendant’s residence. At the time, they possessed information indicating that the defendant might have been at the scene of an armed robbery. After arriving at the defendant’s home, they were let in by the defendant’s mother and were informed that the defendant was sleeping. The defendant was awakened by his mother and came downstairs, whereupon the police officers told him why they were there. They then asked him if he would accompany them to the police station to answer some questions. The defendant without hesitation or objection agreed to accompany the officers to the station for questioning. He was then allowed to leave the officers’ presence to get dressed.

The evidence also showed that the police officers never displayed any weapons or showed any force. They never told the defendant he was under arrest, nor did they handcuff him or restrain him in any manner.

After arriving at the police station, the defendant was taken to an interview room, where he was left alone for awhile. No guard was placed outside the door to prevent the defendant from leaving, and he was never searched, fingerprinted, or placed in a lineup. He was given Miranda warnings, but waived his rights and agreed to talk to the police.

We find that the circumstances surrounding the questioning of the defendant support the trial court’s finding that the defendant was not in custody when he gave his statements. As such, we hold that the trial court did not abuse its discretion in denying the defendant’s motion.

We also find it worthy of note that the defendant never asserted his right to counsel even after he was given Miranda warnings. We note that it is solely the obligation of the defendant to exercise this fundamental right. It is not a right that unretained counsel can invoke on the defendant’s behalf when the defendant himself has waived it. Unlike the fifth amendment, which requires police to cease all interrogation of a suspect once he requests counsel, the sixth amendment is offense-specific. An accused has the right to waive counsel on an uncharged offense even if the defendant already has counsel on an unrelated charged offense. McNeil v. Wisconsin (1991), 501 U.S._, 115 L. Ed. 2d 158, 111 S. Ct. 2204.

The defendant next argues that the trial court abused its discretion in sentencing him to 18 years of imprisonment. Specifically, he argues that the court failed to properly consider the mitigating factors presented.

Sentencing is largely a matter of judicial discretion and, absent an abuse of discretion, a sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) When mitigating evidence is before the trial judge, it is presumed he considered the evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.) Furthermore, when imposing sentence, a trial judge must balance the offender’s rehabilitative potential with the seriousness of the offense. People v. Leonora (1985), 133 Ill. App. 3d 74, 477 N.E.2d 1277.

At the outset, the trial judge immediately noted that none of the statutory mitigating factors were present, but that the evidence presented certain aggravating factors. Based on the theory of accountability, the trial judge found that the defendant was responsible for causing serious bodily harm to the victim. It was established that the victim, a Pizza Hut delivery man, was beaten with a baseball bat that had been taped by the defendant. The victim was also stabbed with a kitchen knife by a codefendant.

In addition to the bodily harm factor, the trial court found that the defendant had a history of prior criminal activity, which included convictions for burglary, aggravated battery, and theft. The court also noted that the instant offenses were committed within two years of the aggravated battery and theft offenses. Finally, in aggravation, the court determined that the sentence of incarceration was necessary to deter others from committing the same type of crime.

In mitigation, the court found that no evidence was elicited at trial showing that the defendant had any indication that a knife would be used during the course of the armed robbery. The court also stated that it was sentencing the defendant for his participation in the offenses with full knowledge that the defendant’s participation did not involve the infliction of the actual blows. The court specifically stated that the distinction was crucial and that it “cut” in the defendant’s favor.

Based on our review of the record, we cannot say that the trial court abused its discretion in sentencing the defendant to a term of 18 years of imprisonment. The defendant committed a serious offense. Further, there is no indication the court failed to consider any proper mitigating evidence before it.

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

Affirmed.

STOUDER, RJ., and HAASE, J., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL W. HAYNES, Defendant-Appellant.
    Third District
    No. 3 — 91—0245
    Opinion filed December 18, 1991.

      Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Following a bench trial, the defendant, Michael W. Haynes, was convicted of robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1). He was subsequently sentenced to a 10-year term of imprisonment. He appeals and we affirm.

At trial, the 84-year-old complaining witness, Lola Johannsen, testified that on the day of the incident she went shopping in a mall. When she finished shopping, she returned to her car in the parking lot. As she was closing her car door, a woman approached. The woman, Robin McLester, began pushing Johannsen, telling her to move over. At one point, McLester said, “We want your car.” Johann-sen tried to push her way out of the car and began screaming for help. She managed to throw her car keys out of the car and fled when McLester ran to retrieve them. Johannsen left in the car her packages and her purse, containing credit cards and $25 in cash. Though she saw her car being driven away, she did not see the defendant, Michael W. Haynes, in it. She testified that she was unaware another person had entered her car until a third party told her there was someone in the back seat while the car was driven away.

The stipulated testimony of State Trooper John Balma established that he stopped the car about 30 to 40 minutes later. The trooper found McLester was driving while defendant Haynes was seated in the passenger seat.

Detective Pablo Reyna testified that a search of the car revealed Johannsen’s credit cards, the packages she had purchased at the mall, paper items from Hardee’s, a toy pistol, and a syringe. There was no money left in Johannsen’s purse.

After waiving his constitutional rights, Haynes gave the police an oral statement and later signed a written statement. (We note that although the written statement was admitted into evidence, it is not part of the record on appeal.) Haynes told Reyna that he and McLester had taken the bus to the mall because they needed money. Haynes said he approached Johannsen in the parking lot and asked if she needed help with her packages. He hoped she would pay him to help. When Johannsen refused, he turned to walk back toward the mall. Haynes then noticed McLester opening Johannsen’s car door and heard her ask Johannsen to give her the car. Johannsen became frightened and threw her keys out of the car. Haynes then picked up the keys and gave them to McLester. As Johannsen yelled for help, Haynes got into the back seat and hid himself while McLester drove away. They later used $15 from Johannsen’s purse to buy gas and used the rest of the money to buy food at a Hardee’s restaurant. Haynes stated they were on their way to Chicago when the police stopped them. Haynes did not indicate he and McLester had a premeditated plan to commit the crime.

At trial, Haynes’ testimony was largely consistent with the above-noted statement, except he claimed that when Johannsen threw her keys, McLester, not he, retrieved them. Haynes further claimed he got into the car because McLester told him to and because he was unfamiliar with the area. Haynes testified he had no idea McLester was going to rob Johannsen. Haynes asserted he had lied when he told the police he picked up the keys after Johannsen threw them.

McLester, who had previously pled guilty to the offense, testified at trial for Haynes. She supported Haynes’ in-court testimony but contradicted the statement Haynes had given to the police. Specifically, McLester testified she picked up the keys. She also testified that the toy gun found in the car was hers. She had not shown it to anyone, including the defendant, before, during, or after the incident. McLester stated that she had no preconceived plan to commit the crime and had not discussed it with Haynes. McLester also testified that she removed the money and credit cards from the purse while driving. She was impeached on this last point by her statement to the police that, while she was driving, Haynes had removed the $25 from the purse.

In addition to the above-noted testimony, certified copies of Haynes’ felony convictions in Texas were admitted into evidence. Following closing arguments, the trial court found the defendant guilty.

Haynes argues on appeal that the State failed to prove him accountable for the offense beyond a reasonable doubt. Specifically, he contends the State failed to show he acted before or during the commission of the robbery with the intent to facilitate the commission of the crime.

In order to be convicted on an accountability theory, the State must show: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid another in the planning or commission of an offense; (2) the participation took place either before or during the commission of the offense; and (3) the defendant had the concurrent specific intent to promote or facilitate the commission of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c); People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 44.) In determining whether accountability has been established, the trier of fact may consider factors such as the defendant’s presence during the crime, acts performed after the commission of the crime, and the offender’s flight from the scene. (People v. Dotson (1986), 143 Ill. App. 3d 135, 492 N.E.2d 903.) Proof that a defendant was present during the commission of a crime without opposing or disapproving it, later maintained a close affiliation with his or her companions, and failed to report the crime are factors which a court may consider in determining a defendant’s legal accountability. People v. Bailey (1985), 132 Ill. App. 3d 399, 476 N.E.2d 1360.

The resolution of factual issues and the assessment of the credibility of the witnesses are for the trier of fact to decide, and a reviewing court will not reverse that judgment unless the evidence is so unsatisfactory or unreasonable that a reasonable doubt of the defendant’s guilt remains. (People v. Peters (1986), 144 Ill. App. 3d 310, 494 N.E.2d 853.) In reviewing the sufficiency of the evidence of an offense, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Based upon our review of the record, we find Haynes’ involvement in the crime sufficient to establish his intent to promote or facilitate the robbery and thus render him accountable for the offense. Haynes asserts that Johannsen’s and McLester’s testimony taken together established a reasonable doubt that he was involved in the robbery. Specifically, he points out that Johannsen testified that when she threw her keys, McLester went after them. Haynes notes that this was consistent with McLester’s testimony that she retrieved the keys. He also points out that Johannsen testified she never saw Haynes.

We find from the record, however, that Haynes testified he had known and lived with McLester “on and off” for about two years prior to the instant offense. Thus, evidence of McLester’s possible bias in testifying for Haynes was presented to the trial court. More importantly, Johannsen did not testify that she saw McLester actually pick up the keys. Rather, she fled the car the moment McLester turned away from her. Therefore, Johannsen’s testimony did not contradict Haynes’ original statement to the police that he retrieved the keys and turned them over to McLester.

Furthermore, Haynes’ behavior following the robbery is crucial in examining his credibility and culpability. Haynes admitted at trial that following the commission of the crime he remained with McLester, traveling in Johannsen’s stolen car and spending money from her purse. Additionally, Haynes and McLester stopped twice, once for gas and once for fast food. Haynes did not take these opportunities to disassociate himself from McLester or to inform the authorities, but rather continued on with McLester toward his stated destination of Chicago.

Finally, it is important to note, based on our review of the record, that both Haynes and McLester were impeached by their prior statements to the police. Clearly, the trial judge believed Haynes was present when McLester opened the car door and that he retrieved the keys and turned them over to McLester. The court stated: “[The defendant knew] exactly what [McLester] intended to do and what he intended to do. And it was to get in that car and drive off, which they did.” A trial judge’s conclusion about the credibility of the witnesses is entitled to great weight. (People v. Gardner (1979), 68 Ill. App. 3d 462, 386 N.E.2d 492.) Under these circumstances, we find the State proved Haynes’ guilt beyond a reasonable doubt. Instead of disassociating himself from McLester, the record clearly reflects Haynes assisted her and actively participated in the crime.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD BRACE, Defendant-Appellant.
    Third District
    No. 3-90-0498
    Opinion filed December 18, 1991.
    Karen Munoz, of State Appellate Defender’s Office, of Springfield, and Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.

      William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Donald Brace, was convicted of attempted murder (Ill. Rev. Stat. 1989, ch. 38, par. 8 — 4(a)) and sentenced to 12 years’ imprisonment. On appeal, he contends that the State failed to prove beyond a reasonable double that he was not justified in the use of deadly force in defense of his son and that the trial judge abused his discretion in imposing sentence. We affirm.

Shortly before 2 a.m. on January 1, 1987, St. Anne police officers Steve Abrassart and Michael Caraway observed a blue pickup truck leave the St. Anne American Legion. After it failed to stop at a stop sign, the officers, driving in a marked squad car, activated their lights and siren. The vehicle proceeded several blocks to the defendant’s home before it came to a stop. Paul Brace, the defendant’s 20-year-old son, was the driver of the pickup. Officer Caraway told Paul Brace that he was going to be issued a ticket for running a stop sign. After a brief argument, Paul Brace accompanied the officers to the squad car. Once inside the car, the officers noticed a strong odor of alcohol emanating from Paul Brace. They advised him that he was also under arrest for driving under the influence (DUI). At that point, Paul Brace tried to leave the squad car. Officer Caraway ran around to Brace’s door in an attempt to keep him in the car, but Brace pushed Caraway and began running from the squad car. Officer Abrassart then ran after and tackled Paul Brace. Both men fell to the ground with Abrassart on top of Paul Brace. As they landed on the ground, Paul Brace cut his face on the gravel in the roadway and his forehead began bleeding. Abrassart attempted to handcuff Paul Brace’s hands behind him as Brace struggled. Paul’s parents came out of the house, approached the scene and asked Abrassart what he was doing.

The officers told Paul’s parents that their son was under arrest for DUI. As the defendant reached out to push Abrassart off of Paul, Caraway stepped in between. Caraway and the defendant engaged in a shoving match. Pat Brace, defendant’s wife, told the defendant to get his gun. The defendant then said, “I’m going to get my gun and kill these motherfuckers.” He started running for the house.

Abrassart instructed Caraway to call for backup. Caraway stood at the open driver’s door to the squad car, grabbed the microphone and requested a backup, indicating that they had a fight going on and that he believed a man may be going into the house to get a gun.

The defendant then emerged from the front door of his house and stood on the porch with a .22 caliber rifle pointed at Caraway. The defendant fired three shots, and Caraway felt a sharp pain in his right arm. He dropped the microphone, pulled out his service revolver and shot it towards the defendant on the porch. When Abrassart heard Caraway’s weapon clicking and saw that the defendant was still standing on the porch aiming the rifle at Caraway, Abrassart pulled his weapon and fired three shots at the defendant. The defendant was struck once in the hand and twice in the abdomen.

Pat Brace went to the porch to check on her husband and saw a gun there. Defendant told her to move the gun, and she took it into the house. Shortly after the occurrence, People’s exhibit 1, an automatic .22 caliber rifle, was found beneath the bed in defendant’s bedroom.

Expert testimony adduced at the trial supported the policemen’s version of the occurrence. The bullet that severely injured Caraway’s right arm passed through his body. A second shot also hit Caraway, passing through his vest embedding in his holster. Although it was not clearly identifiable, the forensic scientist believed it to be a .22 caliber bullet or projectile. The bullet removed from the defendant Donald Brace was identified as having come from Officer Abrassart’s weapon. Additionally, two spent .22 caliber casings were found and determined to have come from the defendant’s rifle.

We first address the defendant’s contention that the State failed to prove beyond a reasonable doubt that he was not justified in the use of deadly force in defense of his son. Upon review, all of the evidence is to be considered in the light most favorable to the prosecution. The reviewing court has the power to reverse only if it can be concluded that no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) In this respect, the trier of fact is responsible for determining the credibility of the witnesses and the weight to be given their testimony. People v. Maloney (1990), 201 Ill. App. 3d 599, 558 N.E.2d 1277.

The jury was specifically instructed on the defendant’s theory that he was acting in defense of another. In addition, the jury was specifically instructed that to find the defendant guilty of attempted murder, it must find, beyond a reasonable doubt, that the defendant was not justified in using the force which he used. Thus, the jury was properly instructed that the State had the burden of proving beyond a reasonable doubt that the defendant was not justified in the use of deadly force.

Whether the defendant’s subjective belief that he was justified in using deadly force was reasonable is a question of fact for the jury to decide. (People v. Collins (1989), 187 Ill. App. 3d 531, 535, 543 N.E.2d 572, 574.) A jury may consider the defendant’s act of arming himself before confronting the victim in rejecting the defendant’s claim that he was acting in self-defense. (People v. Rosas (1977), 52 Ill. App. 3d 555, 557, 367 N.E.2d 986, 988.) A person may use deadly force to protect himself or another only if he reasonably believes that he or the other person is in imminent danger of death or great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 1.) The test is what the defendant, as a reasonable man, believed under the circumstances. People v. Rodriguez (1989), 187 Ill. App. 3d 484, 489, 543 N.E.2d 324, 327.

The defendant observed one police officer struggling with his son in an attempt to handcuff him. Defendant was kept from interfering in the struggle by a second police officer. The defendant admitted that neither police officer had his weapon drawn. Defendant did not directly testify to seeing either officer strike his son. The defendant did not testify that he believed that his son was in imminent danger of death or great bodily harm.

Given the circumstances of this case, a rational trier of fact could conclude, beyond a reasonable doubt, that the defendant was not justified in the use of deadly force, i.e., in going into his home, obtaining a loaded rifle, aiming it at one of the police officers, and discharging it at the police officer. Therefore, we will not disturb the jury’s finding.

The defendant next argues that the trial court abused its discretion in sentencing him to 12 years’ imprisonment. He notes that at the time of the offense he was 48 years old, was under strong provocation, had a limited criminal record, and was gainfully employed. He also points out that his criminal conduct was the result of circumstances unlikely to recur.

We begin by noting that a trial judge’s determination of a proper sentence will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Furthermore, a reviewing court is not a sentencing court and may not substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Attempted murder is a Class X felony, which carries a mandatory term of imprisonment of between 6 and 30 years. (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(c)(1), 1005 — 8—1(a)(3).) The defendant was sentenced to a 12-year term of incarceration. This is at the low end of the 6- to 30-year term prescribed for the offense. It is clear from the trial court’s comments at the sentencing hearing that it weighed and considered both the mitigating and aggravating factors. In light of the fact that the defendant caused serious harm to a police officer by shooting him while he was in the performance of his official duties, we find that the trial court did not abuse its discretion.

Finally, we address the defendant’s argument that the prosecutor erred in recommending a sentence in excess of the minimum allowed for the offense. Prior to trial, the parties entered into a plea agreement in which defendant pleaded guilty to attempted murder in exchange for the minimum sentence of six years. The defendant subsequently withdrew his guilty plea and chose to go to trial. The defendant contends that it was improper for the prosecutor to recommend a longer sentence upon conviction than the parties had agreed to in the earlier plea agreement.

It is not improper for a prosecutor to seek a penalty greater than that offered in plea discussions. (People v. Lewis (1981), 88 Ill. 2d 129, 149, 430 N.E.2d 1346, 1355.) Moreover, the fact that the trial judge imposes a sentence greater than that imposed upon the acceptance of a guilty plea does not, standing alone, taint the sentence. (People v. Morgan (1974), 59 Ill. 2d 276, 281, 319 N.E.2d 764, 767.) In the instant case, the prosecutor, having recognized the earlier proffered plea, cited factors in aggravation and asked only that the trial judge impose a “moderate term of imprisonment.” The trial judge noted that he was not the judge who took the prior plea, that many factors go into a plea negotiation, and that he was imposing sentence based on the individual facts of this case.

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

Affirmed.

BARRY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY HOOD, Defendant-Appellant.
    Third District
    No. 3 — 90—0841
    Opinion filed December 18, 1991.
    Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant, Gregory Hood, was convicted of four counts of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2). On appeal, defendant contends that the trial court erred in denying his motion to dismiss which was based on the failure to bring him to trial within 180 days of his attempted request for disposition under the interstate agreement on detainers (the Agreement) (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—9). Defendant also contends that the trial court erred in refusing to instruct the jury on impeachment by prior inconsistent statements. Because no detainer had been lodged against the defendant at the time of his attempted request and because the jury was properly instructed, we affirm.

On April 26, 1989, defendant was charged by information with the armed robbery of Dominic Younker, and a warrant was issued for his arrest. On June 3, 1989, defendant was arrested by the Fort Meyers, Florida, police department on unrelated charges. On that date, the Fort Meyers police department sent a communication to the La Salle County sheriff’s office asking if La Salle County held any outstanding warrants on the defendant. The La Salle County sheriff’s office responded that they held a valid warrant on the defendant for armed robbery and asked the Fort Meyers police department to let them know if the defendant would sign a waiver of extradition.

Defendant was sentenced to five years in the Florida Department of Corrections on August 16, 1989. On November 16, 1989, the circuit clerk of La Salle County received Agreement forms from the defendant requesting disposition of the Illinois charge.

On November 17, 1989, the La Salle County State’s Attorney’s office issued a second warrant against the defendant. On March 19, 1990, the Florida Department of Corrections indicated that it was treating the November 17 warrant as a detainer. The Florida Department of Corrections then filed the appropriate Agreement forms on behalf of the defendant requesting disposition of the Illinois charge. These forms were filed with the La Salle County circuit court and the La Salle County State’s Attorney’s office, and were file stamped by the circuit clerk on June 29, 1990. The defendant was returned to Illinois on July 16, 1990. On July 24, 1990, the defendant was indicted for the armed robberies of Dominic Younker, Claire Garner, George Blue, and Rudy Marjercin. All four robberies allegedly occurred on April 25,1989.

Prior to trial, the defendant filed a motion to dismiss the charges alleging that the State had failed to try him within 180 days of his request for final disposition of the original charge as required by the Agreement. After a hearing, the motion was denied. The trial began on October 2, 1990. The defendant was found guilty on all four counts of armed robbery and was sentenced to four concurrent 22-year prison terms.

We first address the defendant’s contention that the charges against him should have been dismissed. The defendant contends that he made a proper request for disposition under the Agreement on November 16, 1989, when he sent Agreement forms to the clerk of the circuit court of La Salle County. Because he was not tried within 180 days of this request, defendant argues that the charges against him should have been dismissed. We do not agree.

The purpose of the Agreement is to provide procedures so that a member State can easily obtain, for trial, a prisoner incarcerated in another member State and so that the prisoner may obtain a speedy disposition of the charges against him in a member State. (People v. Befeld (1980), 90 Ill. App. 3d 772, 413 N.E.2d 550.) The instant case involves Article III (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—9), which allows the prisoner to initiate the operational procedures of the Agreement. Article III provides in relevant part:

“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint ***. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—9.

The provisions of the Agreement apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party State. (People v. Daily (1977), 46 Ill. App. 3d 195, 360 N.E.2d 1131.) A request for disposition by a prisoner against

whom no detainer has been filed is insufficient. (United States v. Mauro (1978), 436 U.S. 340, 56 L. Ed. 2d 329, 98 S. Ct. 1834.) The term “detainer” is not defined in the Agreement. In People v. Befeld (1980), 90 Ill. App. 3d 772, 774, 413 N.E.2d 550, 552, this court defined a “detainer” as:

“ ‘a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.’ [Citations.] The detainer must be a formal notice initiated by a prosecuting or law enforcement agency within the member State where criminal charges are pending that the prisoner is wanted to face criminal charges and the notice must be filed with the institution in which the prisoner is serving a sentence. Anything less than a formal notice is insufficient.”

In Befeld, the defendant was charged in Peoria County with armed robbery and theft by deception. He was subsequently convicted of an unrelated charge and sentenced to a term of imprisonment in a Federal penitentiary. A presentence investigation report filed by Federal authorities stated that the Peoria County State’s Attorney and the Illinois Attorney General had indicated that they would attempt to extradite the defendant after disposition of the Federal charges. The defendant argued that Illinois had lodged a detainer against him based on the information received by the Federal authorities concerning the Illinois charges and the intention of the Illinois authorities to attempt extradition. The court held that the sending of such information by the Illinois authorities did not constitute a detainer. The court found that there was no formal notice of the pending Illinois charges sent to the institution in which the prisoner was serving a sentence.

The alleged detainer which the defendant relies on in this case is the June 3, 1989, communication between the Fort Meyers police department and the La Salle County sheriff’s office. In that communication the Fort Meyers police department inquired as to whether La Salle County held any active warrants against the defendant. The La Salle County sheriff’s office responded that it held a valid warrant against the defendant for armed robbery. The defendant characterizes this communication as a filing of a warrant for the defendant’s arrest with the Fort Meyers police department and cites authority for the proposition that a warrant can suffice as a detainer (People v. Daily (1977), 46 Ill. App. 3d 195, 360 N.E.2d 1131).

Initially, we note that the La Salle County sheriff’s office did not file a warrant with the Fort Meyers police department but rather referred to a warrant in response to the Fort Meyers inquiry. Moreover, even if we were to characterize this communication as a filing of a warrant, there is no indication that the Fort Meyers police department considered this communication to be a detainer as the authorities did in the case relied on by the defendant. (Dailey, 46 Ill. App. 3d at 201, 360 N.E.2d at 1136.) Finally, as this court held in Befeld, formal notice of the detainer must be filed with the institution in which the prisoner is serving a sentence. The defendant was arrested by the Fort Meyers police on June 3, but he was not serving a sentence until he was incarcerated in the Florida Department of Corrections on August 12. There is no evidence that this alleged detainer was filed with the Florida Department of Corrections. This interoffice communication is simply not the type of formal notice required to constitute a detainer under Befeld. Because no detainer had been lodged against the defendant when he made his November 16 request for disposition, that request was ineffective and did not commence the 180-day period under the Agreement.

On November 17, 1989, a second warrant was issued against the defendant in La Salle County. On March 19, 1990, the Florida Department of Corrections returned a confirmation of receipt of the November 17 warrant and indicated that it was considering the warrant to be a detainer. The Florida Department of Corrections then sent the appropriate forms on behalf of the defendant requesting final disposition of the Illinois charge. This group of documents conformed to the requirements of the Agreement and was file stamped on June 29, 1990. Therefore, the 180-day period began to run on June 29, 1990. The trial began on October 2, 1990, well within the 180-day period. Thus, the State did not violate the Agreement, and the trial court properly denied the defendant’s motion to dismiss.

Defendant next contends that the trial court erred in refusing to instruct the jury on impeachment by prior inconsistent statements. The record shows that the four robberies with which the defendant was charged took place in an illegal gambling establishment on April 25, 1989. The State presented the testimony of the four victims and a fifth eyewitness. On cross-examination, defense counsel established that each witness had given a statement to the police soon after the incident and that none of the witnesses had informed the police that the scene of the crime was a gambling establishment and that they had been participating in gambling activities at the time of the offense.

The witnesses’ statements to the police were admitted into evidence as prior inconsistent statements under section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.1). Section 115 — 10.1 allows for prior inconsistent statements to be admitted as substantive evidence in criminal cases under certain circumstances. Section 115 — 10.1 provides in relevant part:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
* * *
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and

(A) the statement is proved to have been written or signed by the witness.” (111. Rev. Stat. 1989, ch. 38, par. 115 — 10.1.) Because the prior inconsistent statements in this case were admitted as substantive evidence, the jury was free to consider them both as proof of the facts at issue in the case.

The instruction tendered by the defendant is a limiting instruction which allows the jury to consider the prior inconsistent statements of a witness only for the purpose of deciding the weight to be given the testimony of that witness. (Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.11).) The committee note to IPI Criminal 2d No. 3.11 states that the instruction should not be given when the only prior inconsistent statements admitted at trial are admitted as substantive evidence under section 115 — 10.1. (IPI Criminal 2d No. 3.11, Committee Note, at 69 (Supp. 1989).) Therefore, the trial judge was correct in denying the instruction.

For the reasons stated above, we affirm the judgment of the circuit court of La Salle County.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


author: JUSTICE HAASE

text:
    RAY F. HEIDEN, Plaintiff-Appellee, v. GALVA FOUNDRY COMPANY, Defendant-Appellant.
    Third District
    No. 3 — 91—0550
    Opinion filed December 24, 1991.
    Vonachen, Lawless, Trager & Slevin, of Peoria (James E. Konsky, of counsel), for appellant.
    Dean B. Rhoads, of Sutkowski & Washkuhn Associates, of Peoria (Edwin L. Durham, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Ray Heiden, sold his controlling interest in the Galva Foundry Company (the Company) to the defendant, the Galva Foundry Acquisition Corporation (Galva). The purchase price was based upon a valuation formula which utilized the presumed net book value of the Company. The formula and details of the transaction were set forth in the acquisition and merger agreement (the Agreement), which provided that disputes over the closing balance sheet would be submitted to arbitration. Deloitte, Haskins & Sells, one of the nation’s largest accounting firms, was designated to act as the parties’ arbitrator. After the sale, the firm of Deloitte, Haskins & Sells merged with Touche Ross, also a large national accounting firm. When a dispute arose between the parties over the amount due under the contract, Galva filed an action for declaratory judgment in Federal district court alleging that it was entitled to certain setoffs against amounts owed to Heiden. The Federal district court dismissed for want of diversity jurisdiction. The Seventh Circuit Court of Appeals affirmed.

Heiden then brought the present breach of contract action in the circuit court of Henry County. In response, Galva filed a motion to compel arbitration and stay all judicial proceedings pending the conclusion of arbitration. Heiden argued that since the firm of Deloitte, Haskins & Sells was chosen by the parties to arbitrate their disputes, and the firm no longer existed as contemplated by the parties’ agreement, he was no longer obligated to arbitrate. The trial court agreed and denied Calva’s motion to compel arbitration. We reverse.

On April 22, 1988, an acquisition and merger agreement was entered into by Heiden and the present owners of the Galva Foundry Co. In order to arrive at a purchase price for Heiden’s common stock, the parties agreed to use a particular valuation formula. In summarized form, the valuation formula provided that Galva’s issued and outstanding common stock would be valued at $683,280 subject to certain adjustments provided in the acquisition and merger agreement. The $683,280 figure was based on the assumption that the net book value of Galva Foundry Company was $954,120 as of 12:01 a.m. April 16, 1988. The figure of $954,120 was derived from an unaudited balance sheet of the Company dated March 31, 1988. If the actual net book value of the Company as of the April 15, 1988, date exceeded $954,120, Heiden would be entitled to additional compensation for his shares (according to the formula contained in the acquisition and merger agreement), and if the actual net book value was less than $954,120, Heiden would be entitled to less compensation. In order to test the accuracy of the $954,120 assumption, the parties agreed that a closing balance sheet would be prepared after the closing which would reflect the net book value of the Company as of April 15, 1988. The closing balance sheet was prepared by Schumaker, Romenesko & Associates, Certified Public Accountants.

Upon the merger of Galva Foundry Acquisition Corporation into Galva Foundry Company, Heiden received a cash payment of $125,000 and a promissory note from Galva Foundry Company. The promissory note was in the principal amount of $524,356.98 and provided for monthly installment payments of principal and interest. The principal amount of the original promissory note was based upon the valuation formula which utilized the presumed net book value of the Company of $954,120. Thus, each share of Heiden’s common stock was assigned a value based upon the net book value of the Company being $954,120. This value is referred to in the Agreement as the provisional per share amount. The closing balance sheet prepared by Schumaker, Romenesko & Associates reflected that the actual net book value of Galva Foundry Company on April 15, 1988, was $248,654 less than the net book value of the Company as reflected on the unaudited balance sheet on March 31, 1988. As a result, the Company computed that the principal amount of the promissory note delivered to Heiden at closing should be reduced by $230,490.12.

The acquisition and merger agreement provided that the closing balance sheet “shall be prepared in accordance with generally accepted accounting principles applied on a basis consistent with past practice, and based upon a physical inventory to be conducted by representatives of Buyer and the Company as of the close of business on April 15, 1988.” The Agreement further provided that the closing balance sheet would be prepared within 60 business days following the effective date and that Heiden would be provided all work papers used by the accountants in connection with the preparation of the closing balance sheet. The Agreement provided that Galva Foundry Company would then deliver to Heiden a copy of the closing balance sheet together with an officer’s certificate stating that the closing balance sheet had been prepared in accordance with the Agreement. Finally, the parties provided that disagreements regarding the closing balance sheet would be resolved by arbitration. The Agreement provided that the firm of Deloitte, Haskins & Sells “shall” act as the parties’ arbitrator. The acquisition and merger agreement further provided:

“Governing Law. This Agreement shall be construed and interpreted according to the laws of the State of Wisconsin without reference to the rules of conflicts of law.”

After a hearing on Galva’s motion to compel arbitration, and after reviewing various documents related to these transactions, the trial court ruled that the parties agreed that Illinois law would govern their transaction. The court based its ruling on the fact that the parties’ noncompetition agreement, nonnegotiable promissory note and general business security agreement all specifically recited that they “shall” be construed in accordance with the laws of the State of lilinois. The court also found that the parties, by their conduct in the lawsuit, had agreed to have their agreement determined by Illinois law. The court relied on the fact that the case was pending for some period of time without either side even mentioning the Wisconsin provision. Clearly, this ruling is supported by the evidence. See Yates v. Doctor’s Associates, Inc. (1990), 193 Ill. App. 3d 431, 438, 549 N.E.2d 1010.

A number of issues were presented to the court dealing with choice of law and questions of Federal preemption under the Federal Arbitration Act. Because of our disposition of this case, we do not need to deal further with these questions.

The trial court, after finding that Illinois law applied to the agreement to arbitrate as contained in the acquisition and merger agreement, then found that the firm of Deloitte, Haskins & Sells no longer existed as contemplated by the Illinois Uniform Arbitration Act (Act) (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.). The Act provides, in pertinent part:

“When an arbitrator appointed fails or is unable to act, his successor shall be appointed in the same manner as the original appointment. If the method of appointment of arbitrators is not specified in the agreement and cannot be agreed upon by the parties, the entire arbitration agreement shall terminate.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 10, par. 103.

Based upon the above-cited statute and the trial court’s finding that Deloitte, Haskins & Sells no longer existed, the trial court ruled that Heiden was no longer obligated to arbitrate. The court, in so doing, relied on the fact that there was no provision for naming a successor arbitrator in the Agreement. The court’s reasoning was as follows: (1) the firm of Deloitte, Haskins & Sells was selected by the parties to arbitrate their disputes; (2) Deloitte, Haskins & Sells no longer existed because it merged with the firm of Touche Ross; (3) the parties failed to name a successor or method of selecting a successor; and (4) the parties cannot agree on a successor. Although the trial court’s reasoning possesses some syllogistic merit, we are of the opinion that the Illinois Uniform Arbitration Act was not intended to be interpreted in a rigid or formalistic manner.

The Illinois Uniform Arbitration Act was enacted to provide for an easier, more expeditious and less expensive manner of resolving disputes than by litigation. (Board of Trustees of Community College District 508 v. Cook County College Teachers Union Local 1600 (1981), 102 Ill. App. 3d 681, 430 N.E.2d 249.) The primary purpose of an agreement to arbitrate is to enable the parties to secure a speedy determination of their differences without conforming to the strict formalities necessary in a court of law. Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.

It would elevate form over substance and would be contrary to the overall purpose and goals of arbitration to hold that an agreement to arbitrate is inoperative because the national accounting firm which the parties chose merged with another national accounting firm. We decline to give this narrow interpretation to the Act. It is very clear from the record and from the responses of counsel during oral argument that this was not an agreement to arbitrate that was entered into only because a specific named individual was to be the arbitrator. Deloitte, Haskins & Sells and its successor are both large, national accounting firms. The actual person to serve as arbitrator would be assigned by the firm. Accordingly, we hold that the trial court erred when it found that the parties were not obligated to arbitrate because the firm of Deloitte, Haskins & Sells had merged and no successor was named. We further hold that the successor firm of Deloitte & Touche is the firm contemplated by the parties to serve as arbitrator in this cause.

The defendant-appellant, Galva Foundry Company, also alleges that the trial court erred in ruling as an additional reason to deny arbitration that the issues raised by Heiden in the State-court action must relate to the issue which is covered by the arbitration clause. In other words, the trial court denied arbitration because the motion to compel arbitration did not deal with issues which had been raised in Heiden’s complaint. We agree with the Company that the trial court erred on this issue also. Sections 2(c) and (d) of the Illinois Uniform Arbitration Act provide:

“(c) If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subdivision (a) of this Section, the application shall be made therein. Otherwise and subject to Section 17, the application may be made in any circuit court.
(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 10, pars. 102(c), (d).)

Clearly, under these sections all that is required to trigger arbitration is that the issue be involved in the action or proceeding pending. It does not have to be the issue that was raised in plaintiffs initial lawsuit. Under Illinois law, parties who execute a contract containing a valid arbitration clause are irrevocably committed to arbitrate all disputes clearly arising under the agreement. (THE Ltd. v. Israel (1989), 185 Ill. App. 3d 1059, 541 N.E.2d 1281.) In Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 449, 530 N.E.2d 281, 287, the Illinois Supreme Court stated:

“It was intended, under the Uniform Arbitration Act, on an application to compel or stay arbitration, under section 2 of the Act, that the sole question for the court to determine is whether there was an agreement to arbitrate. [Citation.] If it is obvious that there was an agreement to arbitrate the dispute in question, that is, if the dispute clearly falls within the scope of the arbitration agreement, the court should order arbitration.”

Doubts regarding the scope of arbitrable issues ought to be resolved in favor of arbitration. (Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983), 460 U.S. 1, 74 L. Ed. 2d 765, 103 S. Ct. 927; Howells v. Hoffman (1991), 209 Ill. App. 3d 1004, 568 N.E.2d 934.) It is not necessary for the parties to an arbitration agreement to be able to solve all disputes between them at arbitration. Rather, the court must give effect to the arbitration agreement and require those issues to be arbitrated which are covered by the agreement. In this case, the acquisition and merger agreement provided that “any unresolved disagreement between the Surviving Corporation [(Galva)] and any of the Company’s former shareholders [(Heiden)] as to whether the Closing Balance Sheet has been prepared as required by this section” shall be submitted to arbitration.

Accordingly, the decision of the circuit court of Henry County denying the motion to compel arbitration is reversed, and this cause is remanded to the trial court with directions that arbitration should be compelled to the extent required by the agreement of the parties.

Reversed and remanded with directions.

McCUSKEY and SLATER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. TRACY E. JOHNSON, Defendant-Appellant.
    Third District
    No. 3 — 90—0715
    Opinion filed December 24, 1991.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, and Jon McPhee, of State Appellate Defender’s Office, of Springfield, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Judith Z. Kelly and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, the defendant, Tracy E. Johnson, was convicted of felony murder, burglary, and residential burglary (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(3), 19 — 1(a), 19 — 3(a)). The trial judge imposed a 70-year extended prison term for the felony murder conviction and a concurrent 15-year prison term for the residential burglary. No sentence was imposed for the burglary verdict.

At trial, evidence was presented which showed that the defendant entered the home of the victim, Sterns Crapnell, with the intent to commit a theft therein. The home apparently was empty when the defendant entered. However, during the course of the burglary Crapnell returned home and a struggle ensued between the defendant and the victim. During the struggle, the defendant picked up a club or piece of wood, struck Crapnell repeatedly in the head, and then fled. Later that evening, the defendant sold a telephone answering machine and a computer taken from Crapnell’s home. Crapnell, who was 72 years old, died as a result of multiple blunt force injuries to the head.

On appeal, the defendant first argues that because burglary is a lesser included offense of residential burglary, and because his burglary conviction had to be vacated since judgment and sentence were entered on the greater offense of residential burglary, the felony murder conviction can no longer stand. The defendant asserts that once the burglary conviction was vacated, the felony murder became predicated upon the remaining felony conviction of residential burglary. He notes that residential burglary is not one of the enumerated forcible felonies which may serve as a predicate to felony murder. (111. Rev. Stat. 1989, ch. 38, par. 2 — 8.) Thus, according to the defendant, his felony murder conviction must be vacated. We disagree with the defendant’s analysis.

In the case of felony murder, the predicate felony is always a lesser included offense because the felony, which in the case at bar was burglary, is established by proof of the same or less than all of the facts required to establish the offense of murder in the course of a burglary. (People v. Jordan (1983), 116 Ill. App. 3d 269, 452 N.E.2d 93.) Any conviction entered on the predicate felony underlying the felony murder is properly vacated. People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.

In the instant case, sufficient proof was presented to sustain the guilty verdicts of felony murder based on burglary and residential burglary. In this situation, vacating the conviction for the underlying felony of burglary would not negate a finding that the defendant performed the acts causing the victim’s death while the defendant was committing the burglary. It means only that because it would be impossible to commit the greater offense of felony murder without necessarily committing the lesser offense of burglary, judgment and sentence should only be imposed on the greater offense of felony murder.

Simply because an underlying felony conviction is vacated does not mean, and has never meant, that the felony murder conviction cannot stand. Nor do we accept the defendant’s apparent assertion that whenever a defendant is also convicted of another offense, of which the predicate felony is also a lesser included offense, this somehow negates, or operates as an acquittal of, the predicate felony. A felony murder conviction remains intact and proper even after any conviction for the predicate felony is vacated. This is true whether the vacatur is grounded on the fact that the predicate felony is an included offense of felony murder or the fact that it is an included offense of another felony of which the defendant was also convicted.

The defendant asserts that People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, strongly supports his analysis. Chandler addressed the issue of the defendant’s eligibility for the death penalty. The defendant in Chandler (unlike the instant defendant) had not been either charged with, or found guilty of, burglary. The trial judge in Chandler found that because burglary was a lesser included offense of residential burglary, of which the defendant was convicted, the defendant was eligible for the death penalty. The Illinois Supreme Court held that the defendant’s conviction for residential burglary did not make the defendant eligible for the death penalty pursuant to section 9 — 1(b)(6)(c) of the Illinois Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(6)(c)), because residential burglary is not among the enumerated felonies which support eligibility for death. In rejecting the trial court’s ruling, the supreme court noted in part that its discussion of the issue was guided by the fact that “[aggravating factors serve as necessary prerequisites without which the death sentence cannot be imposed; they delineate the borderline between those cases in which death is a possible punishment and those in which it cannot be considered.” Chandler (1989), 129 Ill. 2d at 252, 543 N.E.2d at 1298.

We agree with the State’s contention that an inquiry into a defendant’s precise conviction as a factor making him eligible for the death penalty is necessarily more restrictive than the typical lesser included offense analysis. The Illinois Supreme Court’s reasoning that it would not create a conviction for an uncharged burglary because of the defendant’s conviction for the greater offense of residential burglary so as to make him eligible for the death penalty does not strongly support the instant defendant’s position.

In sum, we hold that vacating the burglary conviction, whether because it formed the predicate felony for the greater offense of felony murder or because it was a lesser included offense of residential burglary, did not require vacating the defendant’s felony murder conviction.

The defendant next attacks his 70-year extended-term sentence for the felony murder. Specifically, he complains that the trial court did not give adequate consideration to his youth, his rehabilitative potential, and to the objective of restoring him to useful citizenship.

Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) In determining an appropriate sentence, the defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) Although rehabilitation is a factor which must be considered, it is not the sole factor and does not outweigh other considerations which are persuasive of a severe sentence. Similarly, the defendant’s youth does not outweigh the other factors. (People v. Branham (1985), 137 Ill. App. 3d 896, 484 N.E.2d 1226.) The trial judge ordinarily is in the best position to make a reasoned judgment as to a proper sentence which balances the need to protect society and the need to rehabilitate the offender; thus, his judgment is due great weight and deference. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Before imposing sentence in the instant case, the trial court noted that the defendant had received a GED and that the psychological evaluation included in his presentence investigation indicated he was of low-average intelligence but “with nonaggressiveness.” The court also noted in mitigation that the defendant did not contemplate that his conduct in committing the residential burglary would cause or threaten serious harm to another.

In aggravation, the court found that the defendant had a prior criminal record consisting of an adjudication of delinquency for burglary, two adult felony convictions for theft, and various traffic offenses. The court noted the defendant’s involvement with illegal drugs and his unsuccessful probationary periods. The court also recalled the defendant’s trial testimony that he routinely helped his friends sell stolen goods. The court specifically considered the defendant’s potential for rehabilitation and found he had not demonstrated much rehabilitative potential.

Additionally, the court noted the necessity of deterring others from committing murders and house burglaries, the need for punishment, and the need to protect society. Finally, the court found that the extended-term provision was applicable, though discretionary, because the victim was 72.

In reviewing the sentence imposed by the trial court, it is not our function to determine its propriety based on what we might have done. Rather, we are required to determine whether the court exercised proper discretion in deciding between the various alternatives within the range of appropriate sanctions. The defendant was eligible for an extended-term sentence of between 60 and 100 years because he was convicted of a felony committed against a person 60 years of age or older at the time of the offense (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(4)(ii)). The trial court sentenced him to a term well within the permissible range for the offense. We find under these circumstances that the court did not abuse its discretion when it sentenced the defendant to 70 years’ imprisonment.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

STOUDER, P.J., and HAASE, J„ concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH WISBROCK, Defendant-Appellee.
    Third District
    No. 3 — 91—0303
    Opinion filed December 24, 1991.

      Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Darrell K. Seigler, of Ottawa, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Kenneth Wisbrock, made an oral motion in limine seeking to prevent the State from entering into evidence the result of his breathalyzer test. The trial court granted his motion, and the State appeals.

The record shows that after the defendant was arrested for driving under the influence of alcohol (DUI), he attempted to take a breathalyzer test. The machine issued a result reading “.11 deficient sample.” According to the arguments presented by trial counsel in the court below, the State summarily suspended the defendant’s driver’s license due to his refusal to submit to blood-alcohol content testing (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1). In other words, the State viewed providing a deficient sample as equivalent to refusing to take the breathalyzer test. (We note that the State also contended below that the defendant’s refusal to take a blood test at a hospital was another basis upon which his license had been summarily suspended. However, it appears that the parties now agree on appeal that the basis for the license suspension was the deficient breathalyzer sample.)

Prior to his DUI trial, the defendant made an oral motion in limine to preclude the State from using as evidence the “.11 deficient sample” test result. At the hearing on the motion, the defendant argued that because the deficient test result was used to establish a refusal to complete the test, thereby warranting the summary suspension of his driver’s license, the State was precluded from using the test result to prosecute the defendant for DUI. The defendant also argued that the deficient breathalyzer sample was subject to exclusion because a proper foundation for its admission could not be established pursuant to section 11 — 501.2(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2(a)(1)). The trial court concluded that the incomplete or deficient test result did not comport with the standards of the Department of Public Health as required by section 11 — 501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.2) and granted the defendant’s motion in limine.

On appeal, the State argues that the trial court erred. It contends that the breathalyzer result did comport with the requirements of section 11 — 501.2(a)(1) of the Illinois Vehicle Code and that the deficiency of the sample should merely have affected the weight the trier of fact gave the test result. Additionally, the State contends that it should not be precluded from utilizing a breathalyzer result in a DUI trial, even if the same breathalyzer result has been construed as a refusal by the defendant and therefore used to summarily suspend his driver’s license.

We hold that the doctrine of judicial estoppel is applicable in the instant case. The doctrine of judicial estoppel provides that when a party assumes a certain position in a legal proceeding, that party is estopped from assuming a contrary position in a subsequent legal proceeding. (Department of Transportation v. Coe (1983), 112 Ill. App. 3d 506, 445 N.E.2d 506.) For the doctrine to apply, five factors must be present: (1) the party must have taken two positions; (2) the positions must have been taken in separate judicial or quasi-judicial administrative proceedings; (3) the party must have intended for the trier of fact to accept the truth of the facts alleged in support of the position; (4) the party must have succeeded in asserting the first position and received some benefit from it; and (5) the two positions must be inconsistent. Galena Park Home v. Krughoff (1989), 183 Ill. App. 3d 206, 538 N.E.2d 1366.

In the instant case, the State initially took the position that the defendant had refused to take the breathalyzer test. On that basis, the Secretary of State summarily suspended his driver’s license. It then took an inconsistent position in the DUI proceeding by attempting to use the result of the test to help convict the defendant. Under these circumstances, we find that the State was judicially estopped from using the breathalyzer result in the DUI trial. Accordingly, the trial court properly granted the motion in limine. People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367; Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9 (The trial court’s judgment may be sustained on any ground warranted).

Our disposition of the instant case on the basis of the doctrine of judicial estoppel makes it unnecessary to address the State’s argument that the deficient sample complied with the Illinois Vehicle Code.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID MORRISON, Defendant-Appellant.
    Third District
    No. 3 — 90—0635
    Opinion filed December 24, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Defendant, David Morrison, appeals from his conviction of child abduction. Defendant contends that the child-abduction statute violates the due process and equal protection clauses of the United States and Illinois Constitutions. We find the statute constitutional, but we conclude that it was unconstitutionally applied to defendant. Therefore, we reverse the conviction.

Defendant was charged by information with child abduction (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(3)) following the removal of Christopher Morrison from the custody of his mother, Teresa Teitle. It is undisputed that defendant is the natural father of Christopher. However, neither Teresa Teitle nor the defendant ever instituted paternity proceedings. Also, defendant and Teitle were never married to each other. At the time of the incident, Teitle and defendant had lived together for AVz years. Christopher was two years old and had lived with Teitle and defendant since his birth. Defendant financially supported Christopher during this entire period of time.

On Thursday, May 3, 1990, while defendant was at work, Teitle took Christopher and a daughter from a previous marriage and left the residence she shared with defendant to move in with her mother. Teitle testified that she intended to permanently leave defendant. Upon returning from work, defendant discovered that no one was home and that Teitle’s and Christopher’s clothing had been removed. Presuming that Teitle had left him, defendant drove to Teitle’s mother’s house.

Teitle testified that defendant entered the house and asked her if she was leaving him. She testified that upon her answering “yes,” defendant picked up Christopher, took some diapers, told Teitle she would “never see [Christopher] again,” and left the house.

Defendant disputes Teitle’s version of the incident. He testified that he knocked at the door of Teitle’s mother’s house and was let in by Teitle. He asked her what was going on, and she replied that she was leaving him. Defendant asked “why,” but testified that Teitle “didn’t really give me any kind of explanation.” Defendant informed Teitle that he was going to take Christopher for the weekend, since his work had been cancelled for Friday, Saturday, and Sunday. Defendant testified that he and Teitle put shoes and a coat on Christopher, and Teitle provided defendant with some diapers.

Defendant testified that in the presence of Teitle, he used the telephone to call his sister to find a new place for him to stay with Christopher. Defendant then walked outside with Christopher, placed him in the car, and drove away. Defendant was arrested the following evening at his sister’s house.

Defendant was convicted of intentionally removing Christopher without the consent of the child’s mother. (111. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(3).) He received a sentence of conditional discharge for a period of 12 months. He appeals his conviction. We reverse.

The relevant provisions of the child-abduction statute are:

“(3) ‘Lawful custodian’ means a person *** granted legal custody of a child ***. It is presumed that, when the parties have never been married to each other, the mother has legal custody of the child unless a valid court order states otherwise. * * *
(b) A person commits child abduction when he or she:
* * *
(3) Intentionally *** removes the child without the consent of the mother *** of the child if the person is a putative father and *** the paternity of the child has not been legally established ***. However, notwithstanding the presumption created by paragraph (3) of subsection (a), a mother commits child abduction when she intentionally *** removes a child, whom she has abandoned or relinquished custody of, from an unadjudicated father who has provided sole ongoing care and custody of the child in her absence.” Ill. Rev. Stat. 1989, ch. 38, pars. 10— 5(a)(3), (b)(3).

Defendant maintains that this statute violates the due process and equal protection clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§2, 18). Initially, we reject the State’s contention that defendant waived his constitutional right to challenge the statute by not raising it in the circuit court. Our supreme court recently affirmed that a constitutional challenge to a statute can be raised at any time. People v. Christy (1990), 139 Ill. 2d 172, 176, 564 N.E.2d 770, 772.

We first address the defendant’s due process claim. It is well settled that “a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.” (City of Mobile v. Bolden (1980), 446 U.S. 55, 76, 64 L. Ed. 2d 47, 64, 100 S. Ct. 1490, 1504 (plurality opinion); Harris v. McRae (1980), 448 U.S. 297, 312, 65 L. Ed. 2d 784, 801, 100 S. Ct. 2671, 2685-86.) “[WJhether [defendant’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests.” (Youngberg v. Romeo (1982), 457 U.S. 307, 321, 73 L. Ed. 2d 28, 40-41, 102 S. Ct. 2452, 2461; Cruzan v. Director, Missouri Department of Health (1990), 497 U.S. 261, 279, 111 L. Ed. 2d 224, 242, 110 S. Ct. 2841, 2851-52.) The substantive due process right violated, it is argued, is defendant’s interest in the continued care and custody of his child. We find no violation, however. Defendant’s interest in the “ ‘companionship, care, custody, and management’ ” of his illegitimate child, while “ ‘cognizable and substantial’ ” (Quilloin v. Walcott (1978), 434 U.S. 246, 247-48, 54 L. Ed. 2d 511, 515, 98 S. Ct. 549, 551, quoting Stanley v. Illinois (1972), 405 U.S. 645, 651-52, 31 L. Ed. 2d 551, 559, 92 S. Ct. 1208, 1212-13), is subject to the State’s countervailing interest in protecting the custodial right of one parent from the abductive abuses of the other. (People v. Algarin (1990), 200 Ill. App. 3d 740, 748, 558 N.E.2d 457, 462.) Implicit in the statute is the legislature’s recognition of the importance to children of a stable home environment and secure family relationships. (See, e.g., Ill. Rev. Stat. 1989, ch. 40, par. 2102(a)(4).) Advancement of the State’s interest in preventing child abduction by persons not having legal custody of the child is sufficiently important to withstand defendant’s claimed deprivation of a liberty interest in the care and custody of his child.

As part of the due process analysis in this case, we observe that we have placed no reliance on the State’s citation of Michael H. v. Gerald D. (1989), 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333. The facts and decision in that case are completely inopposite to the present appeal. In Michael H. a child’s putative father filed an action in California to establish his paternity and right to visitation. At the time of the child’s conception and birth, the child’s mother had been married to and cohabiting with a man other than the child’s putative father. The Supreme Court upheld the application of a California statute which provided that a child born to a married woman who was living with her husband at the time of conception and birth was presumed to be a child of the marriage.

The State misinterprets the plurality, concurring, and dissenting opinions filed in Michael H. in suggesting that the Court recognized that a biological father has neither the same right to custody as the biological mother, nor a fundamental right to raise his children. Rather, five members of the Court confirmed the right of natural parents. Justice Stevens’ concurrence that sufficient process had been afforded to protect a putative father’s interest also recognized that the father nonetheless had a “constitutionally protected interest in his relationship with [his] child.” (491 U.S. at 133, 105 L. Ed. 2d at 112, 109 S. Ct. at 2347.) Four other justices also found such a constitutional right. (491 U.S. at 136, 105 L. Ed. 2d at 114, 109 S. Ct. at 2349 (Brennan, J., dissenting); 491 U.S. at 157, 105 L. Ed. 2d at 128, 109 S. Ct. at 2360 (White, J., dissenting).) Preservation of the recognized unitary family in Michael H. was thought to be entitled to greater constitutional protection than the claim asserted by the biological father. Unlike the situation in Michael H., there are no competing interests in the instant case between the head of a unitary family and the biological father. Michael H., therefore, represents no erosion of defendant’s constitutional interest in his relationship with his child from that established in Stanley (405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208) and subsequent cases.

Next, defendant contends that the child-abduction statute violates our State’s constitutional guarantee of equal protection because it is not gender-neutral. (Ill. Const. 1970, art. I, §18.) Our constitution’s equal protection clause “render[s] any classification based on sex to be a ‘suspect classification.’ ” (In re Estate of Karas (1975), 61 Ill. 2d 40, 53, 329 N.E.2d 234, 241.) Therefore, any classification based on sex must be “subjected] *** to ‘strict judicial scrutiny’ and requires] the existence of a compelling State interest to justify the classification.” Karas, 61 Ill. 2d at 53, 329 N.E.2d at 241; see also People v. Ellis (1974), 57 Ill. 2d 127, 132-33, 311 N.E.2d 98, 101.

Defendant argues that the child-abduction statute provides for the prosecution of unwed fathers under circumstances in which an unwed mother would not be subject to prosecution. We disagree. The statute specifically provides that, notwithstanding the presumption created in subsection (a)(3) that a mother has legal custody, “a mother commits child abduction when she *** removes a child, whom she has abandoned or relinquished custody of, from an unadjudicated father who has provided sole ongoing care and custody.” (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 5(b)(3).) Any distinction in the statute between unwed mothers and fathers is sufficiently justified by the State’s compelling interest in curbing abduction of illegitimate children from one unwed parent by the other. It should be noted that a parent/child relationship is established between a child and the natural mother by proof of her having given birth to the child. (Ill. Rev. Stat. 1989, ch. 40, par. 2504(1).) An unwed father, however, can only establish a legal relationship with his child through the circuit court, pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1989, ch. 40, par. 2501 et seq.). The State’s failure to grant the same measure of recognition of legal parentage at birth to an unwed father as that accorded an unwed mother is based merely upon the biological reality that motherhood is obviously more apparent and therefore more easily established. Once an unwed father complies with the statutory procedure of legally establishing his biological relationship with the child, he cannot be convicted under the statute.

Although we have concluded that the statute is constitutional, we find that it has been unconstitutionally applied to this defendant based solely and exclusively upon the record in this case. Therefore, we must reverse the defendant’s conviction.

The facts and circumstances surrounding the “taking” of Christopher by his father were not those envisioned by the legislature when it passed the child-abduction statute requiring the imposition of criminal penalties. (Cf. People v. Rodriguez (1988), 169 Ill. App. 3d 131, 523 N.E.2d 185; People v. Williams (1982), 105 Ill. App. 3d 372, 434 N.E.2d 412; People v. Harrison (1980), 82 Ill. App. 3d 530, 402 N.E.2d 822.) Nothing in the record indicates that this defendant had been a neglectful father who had abandoned his child. Prior to the child’s removal by his mother from the shared residence, defendant had resided with Christopher from his birth and had provided uninterrupted financial and emotional support. Defendant exhibited all characteristics of responsibility toward Christopher that would be expected of a child’s natural mother or a legally adjudicated father. We take particular note that, absent a marriage license, defendant and Teitle lived together and shared family responsibilities with Christopher as if they were lawfully married to each other. We conclude, based on this record, that the application of the child-abduction statute under these facts would deprive the defendant of equal protection of the law.

The judgment of the circuit court of Will County is reversed.

Reversed.

BARRY and SLATER, JJ., concur.