text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EDWARD DeLAIRE et al., Defendants-Appellees.
    Second District
    Nos. 2 — 90—0953, 2 — 90—0954 cons.
    Opinion filed January 28, 1993.
    Rehearing denied March 5, 1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Jerome Rotenberg, of Chicago, and George P. Lynch, of George Patrick Lynch, Ltd., of Downers Grove, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The State appeals the order of the circuit court of Du Page County which suppressed evidence seized pursuant to a search warrant and the defendants’ message unit detail (MUD) records obtained by a post-indictment grand jury subpoena. The circuit court entered an order of suppression in the causes against each defendant, Edward DeLaire and Donald Rippin. The appeals were consolidated because of the common facts and issues. The State contends the circuit court first erred in finding that citizens have a privacy interest in MUD records. Second, the State argues that the circuit court erred when it held that the evidence should be suppressed because the search warrant was obtained through a diversion of private information obtained by a grand jury subpoena duces tecum. The defendants also contend that the MUD records should be suppressed because the telephone company was not personally served with the subpoenas; that one subpoena was invalid because the grand jury had already completed its investigation when the subpoena was issued and served; that the search warrants authorizing the search of their residences were vague; and that the police failed to knock and announce their presence before entering Rippin’s residence. All but the last two issues are of first impression in Illinois.

I

On December 1, 1989, the grand jury indicted Rippin for syndicated gambling, keeping a gambling place, and conspiracy to commit gambling (Ill. Rev. Stat. 1989, ch. 38, pars. 28 — 1.1(d), 28 — 3, 28— l(a)(ll), 8 — 2(a)). The grand jury indicted DeLaire with conspiracy to commit gambling and syndicated gambling. Other than the testimony regarding the actual breaking into Rippin’s residence, the trial court heard no evidence. It relied on the face of the complaint for the search warrant, the seven subpoenas duces tecum, an affidavit from the keeper of records at the telephone company, and the prosecutor’s admissions.

On November 11, 1989, Detective David Wall of the Addison police department swore the allegations of the complaint for the search warrant. According to the complaint, on September 14, 1989, he received a telephone call from a woman who wished to remain anonymous. She claimed her husband was placing bets with Donald Rippin on the outcome of sporting events. Her husband would telephone Rip-pin’s paging number, and Rippin would then call him. She told Wall the numbers. She also stated that Rippin worked for a man called “Fast Eddy.” The caller gave Rippin’s address and said he lived there with his girlfriend, “Toots.” The tipstrix gave Toots’ telephone number.

Wall checked the telephone number and determined that it was registered to Bernice Bauer at the address provided by the tipstrix. He went to the address and saw a car registered to Bauer and a pickup truck registered to a Donald Rippin of that address. On October 7, 18, and 28, Wall followed Rippin as he drove to DeLaire’s house in Villa Park. On October 14, Wall saw Rippin meet briefly with two men in cars. Wall checked their license plate numbers with the Secretary of State and determined they were registered to people with addresses in Hanover Park and Elmhurst. Wall and other detectives also conducted surveillance on Rippin’s residence and noticed that he did not leave his location during the hours they suspected he was accepting wagers, namely, Saturday, October 21, 1989, 7:30 a.m. to 12 p.m.; Sunday, October 22 from 9:09 a.m. until 3:34 p.m.; and Monday, October 23 from 5:45 p.m. until 8 p.m. On the Sunday, Wall followed Rippin to a trailer home in Bartlett; Rippin drove a circuitous route, made a U-turn, and doubled back before entering the trailer.

These facts comprised the first two of the eight pages of the complaint for the search warrant. The trial court ruled that these facts alone were not sufficient to justify a search of the defendants’ residences. The trial court ruled that the facts which follow did create probable cause to believe the defendants were committing gambling crimes; however, because these facts show Wall improperly relied upon the grand jury’s MUD records, the trial court considered the evidence tainted and suppressed the evidence discovered during the execution of the warrant.

In his complaint, Wall next stated he reviewed the MUD records, but he did not reveal how he obtained them. The MUD records showed the numbers of all the telephone calls that originated from Rippin’s Addison residence from October 20 through 24 and the duration of the calls. On October 21, 1989, that phone originated 44 calls from 10 a.m. to 6:35 p.m., and most calls lasted less than a minute. The phone originated three calls to a number which Wall, upon further inquiry, determined was registered to the Hanover Park man. The phone also originated seven calls to another number, which Wall determined was owned by Score Board, Inc. Wall called that number and heard a recording of the scores of various sporting events.

Wall reviewed the MUD records for the Bartlett trailer from Sunday, October 22. The telephone there originated 70 calls before 3 p.m. The calls were of short duration, often less than a minute. Some of the calls were to numbers Wall determined were registered to the men with the addresses in Hanover Park and Elmhurst with whom Rippin had met the prior week.

Wall determined that the Chicago Bears football team played a game on Monday evening, October 23. From 4:45 to 7:02 p.m., 48 calls were placed from the phone in Rippin’s Addison residence. The first and last calls were made to a number Wall later determined was registered to DeLaire.

Wall conducted a similar surveillance and MUD record study for Sunday, October 29, during which Rippin did not leave the residence. At the residence in Addison, 81 calls were placed between 9:55 a.m. and 3:10 p.m., including five to DeLaire’s number and seven to Score Board, Inc. A similar pattern was shown on other dates. Wall checked the MUD records for DeLaire’s address and found several calls from Rippin’s address and several to Score Board, Inc. The records also showed a call to a different number, which Detective Simo called. The man who answered the call said that he provided sports information, such as the “Line,” to paid subscribers and that his address was in Las Vegas, Nevada.

Wall spoke with a sergeant from the Illinois State Police who said that Rippin and DeLaire were convicted of syndicated gambling in Du Page County in May 1986 and were coconspirators. The sergeant also said DeLaire used the name “Fast Eddy.” Wall spoke with a sergeant of the Du Page County sheriff’s office, who related that he observed DeLaire accepting bets over the telephone in a bar where he would make payments to patrons. On November 11, Sergeant Gorniak of the Addison police department followed DeLaire to a lounge in Lombard. The public phone rang six times, and DeLaire answered each call. Two calls were for other patrons. During the other four calls, DeLaire spoke less than a minute. He also wore a pager.

Wall concluded that, based on his experience, the defendants’ behavior was consistent with the modus operandi of men running a wire room. In his experience, telephone calls used to place wagers are very-short in duration. He concluded that they were accepting bets on Saturday collegiate and Sunday and Monday professional football games.

The judge granted the search warrant, which the police executed on November 12. Wall broke down Rippin’s door with a battering ram and caught him with a telephone in his hand. The police seized currency, four envelopes, including one containing water-soluble paper, three football line sheets, an envelope containing gambling records, ripped gambling records, records of the status of the accounts of the bettors, other records and two pagers.

The defendants brought a motion to suppress the evidence. They introduced an affidavit of the keeper of records at Illinois Bell Telephone Company (Bell). She stated that Bell will produce MUD records to law enforcement officials only when they supply a subpoena. The records will be mailed to a subscriber upon his request.

During Wall’s investigation, the clerk of the circuit court for Du Page County had issued seven subpoenas duces tecum to the sheriff to serve on Bell. The subpoenas required Bell to appear before the grand jury on a specified date with the specified MUD records. The State’s Attorney’s name appeared on the bottom of the subpoenas. The return showing service of the subpoena was left blank on all but the first and last subpoena. Instead, the others bear an unsigned notation such as “sent by regular mail 10-16-89.” Some bear a notation that the sending of the subpoena was only a confirmation of a previous oral request. The November 6 subpoena, requiring an appearance on November 8, was mailed November 9, but it bore a note that it was only a confirmation of Wall’s telephonic request.

The seventh subpoena was dated January 2, 1990, and commanded an appearance on January 17, 1990. These dates followed the indictment. The first subpoena was dated September 21, 1989, but it sought only the basic subscriber information for the Addison address. The other subpoenas were issued October 16, 19, 26, 31, and November 6, 1989. They commanded Bell’s appearance with the records before the grand jury on November 8 and 10. However, the complaint for the search warrant reveals that Detective Wall used the MUD records prior to the grand jury sessions. He used the information to discover additional information that the defendants were engaged in gambling; for example, his investigations showed some of the numbers revealed in the MUD records were sports information services. The trial court also took notice that the State’s Attorney had a standard practice of obtaining a court order at the beginning of every grand jury session permitting him to obtain subpoenas without the specific authorization of the jury.

The trial court made several rulings. First, after a careful weighing of the evidence, the court determined the defendant failed to disprove that the police had knocked and announced prior to their breaking of Rippin’s door. Second, the complaint for the search warrant demonstrated probable cause to justify the issuance of the warrant but not without the evidence obtained from the MUD records. Third, the defendants had a privacy interest in the MUD records. Fourth, the grand jury could nonetheless subpoena the MUD records because the records were relevant and the request was not overly broad. Fifth, the seventh subpoena was improper because it was sent after the indictment and the grand jury had finished its investigation. Sixth, whether the subpoenas were sent by regular mail and facsimile to the telephone company or were personally served did not make a difference to the defendants’ motion. Seventh, the diversion of the MUD records from the grand jury to Wall was illegal, and the evidence obtained through the use of the produced MUD records was suppressed.

II

The State argues that there is no privacy interest in MUD records and that the grand jury was statutorily authorized to release the information to the government investigators.

Because the Illinois Constitution of 1970 exceeds the Federal constitutional guarantees of privacy (In re May 1991 Will County Grand Jury (1992), 152 Ill. 2d 381, 390) (hereinafter Marquez), we quote it in full.

“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” Ill. Const. 1970, art. 1, §6.

The State argues that citizens have no right of privacy in the MUD records. Without a right of privacy, the State’s use of the records does not violate the constitutional provisions. (People v. Jackson (1983), 116 Ill. App. 3d 430, 432.) The State cites United States v. Miller (1976), 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619, in which the United States Supreme Court ruled that a defendant had no privacy interest in the business records kept by a third party, a bank. There was no expectation of privacy in the contents of negotiable instruments used in commercial transactions. The State also cites Smith v. Maryland (1979), 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577, in which the Supreme Court ruled that the use of a pen register did not constitute a search since a defendant did not have a legitimate expectation of privacy in the numbers dialed. In Smith, the police had the telephone company install a pen register, which is a device which records the numbers dialed from a telephone, but it did not record the contents of the conversations.

We believe that citizens have a legitimate expectation that their telephone records will not be disclosed. (See Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (defining legitimate expectation of privacy and holding that privacy interest in a public telephone booth prohibited interception of calls placing wagers).) Miller and Smith are not controlling because the Illinois Constitution provides greater protection than the Federal Constitution. (Jackson, 116 Ill. App. 3d at 434; see Marquez, 152 Ill. 2d at 390; see also United States v. Illinois Bell Telephone Co. (7th Cir. 1976), 531 F.2d 809, 814-15 (involving probable cause to install pen register during gambling investigation).) Moreover, Miller involved items which were voluntarily delivered to the third parties. Bell is a monopoly and a utility, and it records customers’ message unit details automatically and involuntarily. As in Jackson, the MUD records revealed personal associations and dealings which create a “biography” which should not be subject to an unreasonable search or seizure. (Jackson, 116 Ill. App. 3d at 435.) The MUD records disclosed highly personal matters similar to banking records (as in Jackson), credit services, and income tax services. (See Small v. Kusper (1987), 161 Ill. App. 3d 42, 47.) In United States v. Karo (1984), 468 U.S. 705, 715-16, 82 L. Ed. 2d 530, 541-42, 104 S. Ct. 3296, 3303-04, the Supreme Court determined that the police could not monitor activities in a home with an electronic device; it revealed critical facts about the activities in the interior of a residence. Similarly, the MUD records constituted a monitor of the activities in defendants’ residences. In addition, the MUD records indicate whether calls are completed and their duration, which the pen-register monitoring in Smith did not do. The evidence before the trial court, which admitted it was familiar with MUD records, supports its conclusion that the records were private. Although Bell also has access to the records, that does not negate persons’ expectation of privacy in the telephone records. (See 1 W. LaFave, Search & Seizure §2.7(b), at 508 (2d ed. 1987).) Thus, we affirm the trial court’s finding concerning the privacy interest in MUD records. See Annot., 76 A.L.R.4th 536 (1990) (cited by trial court regarding privacy interest in telephone records); see also State v. Gunwall (1986), 106 Wash. 2d 54, 720 P.2d 808.

Ill

While the defendants had a privacy interest in their telephone records, the grand jury could nonetheless obtain those records even without probable cause. The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether probable cause that a crime has occurred exists. The grand jury can investigate merely on a suspicion that the law is being violated or even just because it wants assurance that it is not. (United States v. R. Enterprises, Inc. (1991), 498 U.S. 292, 297, 112 L. Ed. 2d 795, 805, 111 S. Ct. 722, 726.) A grand jury investigation is not completed until every available clue has been tracked and all witnesses examined to determine whether a crime has been committed. (United States v. R. Enterprises, Inc. (1991), 498 U.S. 292, 297, 112 L. Ed. 2d 795, 805, 111 S. Ct. 722, 726.) The State is not required to justify the issuance of a subpoena by establishing probable cause because the very purpose of the request is to ascertain whether probable cause exists. (United States v. R. Enterprises, Inc. (1991), 498 U.S. 292, 297, 112 L. Ed. 2d 795, 805, 111 S. Ct. 722, 726; see Marquez, 152 Ill. 2d at 392.) The grand jury is unrestrained by technical and evidentiary rules governing the conduct of criminal trials which would burden it with minitrials on evidence. (R. Enterprises, 498 U.S. at 298-99, 112 L. Ed. 2d at 806, 111 S. Ct. at 727.) Thus, a grand jury may subpoena private documents even without having probable cause to believe the owner has committed a crime. A respondent’s turnover of documents pursuant to a subpoena is less intrusive than a seizure of documents, and the respondent of a subpoena has the opportunity to quash it before complying. These aspects also diminish the need for a showing of prior probable cause. 2 W. La-Fave, Search & Seizure §4.13(e), at 382 (2d ed. 1987).

The grand jury’s subpoena power is not unlimited, however. When it infringes on a person’s protected rights, the reasonableness of the intrusion must be tested against the validity of the grand jury’s subpoena. (Marquez, 152 Ill. 2d at 392; People v. I.W.I., Inc. (1988), 176 Ill. App. 3d 951, 956-57.) MUD records are documentary evidence rather than personal or bodily evidence (cf. Marquez, 152 Ill. 2d at 394-400 (hair samples)), and the reasonableness of the intrusion is tested by determining (1) whether the document is relevant to the inquiry; and (2) whether the specification of the document to be produced is adequate but not excessive for the purpose of the relevant inquiry (Jackson, 116 Ill. App. 3d at 436). The defendants make no argument that the trial court erred by finding that the MUD records were relevant and specified. We also find no error and find the grand jury could validly subpoena the MUD records. See People v. Allen (1951), 410 Ill. 508, 516-18 (relevancy of documents showing conspiracy to commit gambling).

IV

We next address the critical issue in this cause, the suppression of the evidence discovered during the execution of the search warrant. We note that the trial court did not quash the indictment. The exclusionary rule does not bar a grand jury from considering evidence illegally obtained, and the use of such evidence does not warrant dismissal of an indictment. (United States v. Calandra (1974), 414 U.S. 338, 343-45, 38 L. Ed. 2d 561, 568-69, 94 S. Ct. 613, 617-18; People v. J.H. (1990), 136 Ill. 2d 1, 11.) The trial court has the authority to dismiss an indictment procured through prosecutorial misconduct only when the accused can show that the misconduct results in actual and substantial prejudice to him. (People v. Fassler (1992), 153 Ill. 2d 49, 58.) While the grand jury may consider improper evidence, the trial court may suppress the use of the evidence during a criminal trial. J.H., 136 Ill. 2d at 11.

The trial court’s holding rests on the finding that it was the police department, not the grand jury, which used the MUD records. The trial court found that the State’s use of the subpoena to obtain information to support a search warrant was improper because the police officer was not acting as the agent of the jury. Wall could not have obtained the MUD records by himself because the facts he knew would not have supported probable cause for a seizure of the records. The court found such a diversion of records would be “watering down the warrant requirement tremendously” and would render the constitutional protections meaningless. The police could circumvent the probable cause requirement in any instance merely by diverting information obtained by a subpoena. The trial court determined the grand jury information could not be disclosed to the police for the purpose of police work but only for grand jury work. The police illegally obtained the private information listed in the complaint for the search warrant, and the evidence could not be used at a criminal trial.

The trial court’s reasoning has support in the law. The prosecutor or police may not usurp the powers of the grand jury.

“The subpoena power of the grand jury is designed for its own use, not to further independent investigations of the prosecutor or police. In most jurisdictions, the prosecutor may have subpoenas issued without advance authorization of the grand jury, but the purpose of the subpoena must be to produce evidence for use of the grand jury.” (1 W. LaFave & J. Israel, Criminal Procedure §8.8, at 665 (1984).)

The prosecutor may screen the materials prior to the presentation to the jurors, but he may not use the subpoena as a ruse to obtain information. 1 W. LaFave & J. Israel, Criminal Procedure §8.8, at 665-66 (1984).

The purpose of the grand jury requires that it remain free, within constitutional and statutory limits, to operate independently of either the prosecuting attorney or judge. (United States v. Sells Engineering, Inc. (1983), 463 U.S. 418, 430, 77 L. Ed. 2d 743, 756, 103 S. Ct. 3133, 3141.) The grand jury must operate in secrecy. (R. Enterprises, 498 U.S. at 299, 112 L. Ed. 2d at 806, 111 S. Ct. at 727.) Ordinarily, matters of the grand jury may not be disclosed by the State’s Attorney. (Ill. Rev. Stat. 1989, ch. 38, par. 112 — 6.) A savings of time cannot justify a breach of security. Sells Engineering, 463 U.S. at 431, 77 L. Ed. 2d at 757, 103 S. Ct. at 3141-42.

The constitution, statutes, and the case law recognize the primary and nearly exclusive role of the grand jury as the institution of compulsory disclosure. The law does not recognize the State’s Attorney’s office as a proper substitute for the grand jury room, and the law does not recognize the use of a grand jury subpoena as a compulsory administrative process of the State’s Attorney’s office. (In re Melvin (1st Cir. 1976), 546 F.2d 1, 5.) The grand jury is the sword and the shield of the citizenry. (See People v. Rodgers (1982), 92 Ill. 2d 283, 289; 1 W. LaFave & J. Israel, Criminal Procedure §8.1, at 599 (1984).) Grand jury secrecy is as important for the protection of the innocent as for the pursuit of the guilty. (Sells Engineering, 463 U.S. at 424, 77 L. Ed. 2d at 753, 103 S. Ct. at 3138; Rodgers, 92 Ill. 2d at 288-90.) Its powers cannot be used to circumvent the protections of the fourth amendment. (See In re Nwamu (S.D.N.Y. 1976), 421 F. Supp. 1361 (subpoena to deliver documents to agent “forthwith” is an improper encroachment on the fourth amendment).) Grand juries are subject to judicial control and the limits of the Bill of Rights. (United States v. Dionisio (1973), 410 U.S. 1, 12, 35 L. Ed. 2d 67, 78, 93 S. Ct. 764, 770.) The use of a subpoena is a judicial process, and the courts have broad powers to prevent abuses of their processes. (People v. Walley (1991), 215 Ill. App. 3d 971, 974.) The trial court could thus suppress the resulting evidence. 215 Ill. App. 3d at 975.

Our analysis is not complete because the subpoena was initially valid under the grand jury’s powers as an inquisition. (See J.H., 136 Ill. 2d at 14.) The State notes that pursuant to section 112— 6(c)(l) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 112 — 6(c)(1)(b)), the grand jury may make disclosures to the State’s Attorney for use in the performance of his duties and to “such government personnel as are deemed necessary by the State’s Attorney in the performance of such State’s Attorney’s duty to enforce State criminal law.” (See also Ill. Rev. Stat. 1989, ch. 34, par. 3 — 9005 (duties of State’s Attorneys).) Section 112 — 6(c) is necessary because ordinarily only one or two prosecutors will appear before the grand jury, but the whole “prosecution team” may need to use the discovered information. (1 W. LaFave & J. Israel, Criminal Procedure §8.5(d), at 632-33 (1984), citing Sells Engineering, 463 U.S. 418, 77 L. Ed. 2d 743, 103 S. Ct. 3133.) Such provisions also enable the State’s Attorney to refer evidence to experts for analysis of chemical composition, fingerprints, accounts, or handwriting, for example. See Sells Engineering, 463 U.S. at 436, 77 L. Ed. 2d at 760, 103 S. Ct. at 3144.

As the trial court found, the State has made no showing that Detective Wall was acting in the performance of the duties of the State’s Attorney or the grand jury. (See People v. Corr (Colo. 1984), 682 P.2d 20, 29-30.) The record shows no hint of the involvement of the State’s Attorney in procuring the search warrant and no involvement of the grand jury in any part of the investigation. Moreover, section 112— 6(c)(2) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 112 — 6(c)(2)) further explains that any person to whom matters are disclosed shall not use the grand jury material for any purpose other than assisting the State’s Attorney in the performance of the State’s Attorney’s duty to enforce State criminal law. Importantly, section 112 — 6(c)(2) requires the State’s Attorney to inform promptly the court of all such persons receiving disclosure. The State cannot claim the benefit of disclosure under section 112 — 6(c)(1) without having shown compliance with section 112 — 6(c)(2) by informing the court of the disclosure.

We are cognizant of Detective Wall’s performance because the MUD records by themselves were of limited value in reaching probable cause. Detective Wall enhanced the value with his diligent followup research. The bare numbers on the documents did not tell a story. Wall’s further investigation showed these numbers were registered to DeLaire, Score Board, Inc., the Las Vegas line, and customers. He also applied his knowledge of the pattern of calls and the times of the calls to link the calls to the sports wire room modus operandi, although he never explained on what he based his experience of gambling patterns. The grand jury could not very well conduct surveillance outside Rippin’s residence during the prime wagering periods or watch DeLaire take calls in a lounge. Complex grand jury investigations require the coordination of the prosecutors and other government agents. (See 8 J. Moore, Federal Practice §6.01[9], at 6-29 (2d ed. 1992).) It is the grand jury which conducts the investigation. In the Federal practice, the names of all those to whom information has been disclosed must be promptly provided to the court. This requirement assures that all personnel involved in the investigation comprehend and appreciate the secrecy of the grand jury proceedings. (8 J. Moore, Federal Practice §6.01[9], at 6-30 (2d ed. 1992); see In re Kiefaber (9th Cir. 1985), 774 F.2d 969, 974-75.) Section 112-6(c) of our Code now requires such disclosure; it was enacted after our opinion in Board of Education, Community Unit School District No. 200 v. Verisario (1986), 143 Ill. App. 3d 1000, and is nearly identical to Federal Rule of Criminal Procedure 6(e)(3) (Fed. R. Crim. P. 6(e)(3)). In Verisario, we ruled the Federal law was instructive in construing an identical State provision. (Verisario, 143 Ill. App. 3d at 1005.) Wall’s complaint demonstrates he was not acting as an investigator of the grand jury or of the State’s Attorney with an appreciation of their powers and duties as section 112 — 6(c)(2) requires.

In this situation, the State’s Attorney should have requested the grand jury to petition the circuit court to appoint Wall as its investigator pursuant to section 112 — 5 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 112 — 5). The trial court found, however, that Wall was not acting as the agent of the grand jury. (Cf. United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (FBI agent appointed as the grand jury’s investigator to examine gambling records; it was the grand jury which was conducting the investigation).) The Code provided the needed procedures which the State failed to use. Given the State’s Attorney’s lack of involvement and the failure of the grand jury to receive the subpoenaed records, we are not surprised by the the lack of compliance with either section 112 — 5 or 112 — 6(c)(2), which would have permitted Wall to act as the agent of the jury or of the State’s Attorney. Detective Wall was conducting his own investigation with the subpoena powers of the grand jury but without the protections built into the grand jury system. Wall was not appointed as the investigator of the grand jury, and the content of the subpoenaed records could not be divulged to him. Thus, the information supporting his complaint for a search warrant was obtained illegally, and the trial court properly suppressed the fruits of the search. (See Walley, 215 Ill. App. 3d at 974-75.) We agree with the trial court that the device of the subpoena duces tecum cannot be used to circumvent the warrant requirement of the Federal and State constitutions by investigators who are not the appointed agents of a grand jury and thus under the control of the independent citizens and the court.

The State argues that the secrecy of the grand jury applies only to prevent disclosure of the essence of what transpires within the jury room and not the documents sent to the jury. (Board of Education, Community Unit School District No. 200 v. Verisario (1986), 143 Ill. App. 3d 1000, 1007.) In Verisario, this court ruled that the grand jury secrecy did not prevent documents such as telephone records, which the grand jury had subpoenaed, from being later used in other causes. The mere fact that the grand jury has viewed a document did not convert it into a matter occurring before a grand jury. (143 Ill. App. 3d at 1007-08.) However, in Verisario, the grand jury had used the documents to indict the defendant, and a criminal trial had ensued; the plaintiff in a later civil suit subpoenaed the defendant’s documents from the police department. The text of the documents by itself did not reveal anything of the grand jury proceedings.

By contrast, the situation before this court involves an action by the State to obtain records over which the defendants had a legitimate expectation of privacy and which had not been made public at a prior trial. The police circumvented the fourth amendment by diverting private records from the secret grand jury. In Verisario, we adopted the reasoning of the Supreme Court in Sells Engineering, which held that information secured by grand jury subpoenas could not be routinely distributed to other criminal and civil government attorneys. (143 Ill. App. 3d at 1005.) We noted the Sells Engineering concerns that such disclosure would increase the risk of inadvertent or illegal release of grand jury materials to others; would further tempt prosecutors to manipulate the grand jury to elicit improperly evidence for use in civil cases; and would threaten to subvert discovery limitations applied outside the grand jury context. (143 Ill. App. 3d at 1005-06, citing Sells, 463 U.S. at 431-35, 77 L. Ed. 2d at 757-59, 103 S. Ct. at 3142-44.) In this cause, the State violated the fourth amendment by obtaining private records through the misuse of the subpoena power of the grand jury. This power is an extraordinary grant which is intended only for use by a group of citizens protected by secrecy. See 8 J. Moore, Federal Practice §6.01[9], at 6-29, 6-30 (2d ed. 1992).

V

Finally, the State argues that even without the MUD records, the State established probable cause based on an anonymous tip, the prior criminal history of the defendants, and the conversations with other officers regarding the defendants’ involvement with gambling. A reviewing court will not reverse a trial court’s ruling on a motion to suppress unless the ruling is against the manifest weight of the evidence. (People v. Galvin (1989), 127 Ill. 2d 153, 162; People v. Galdine (1991), 212 Ill. App. 3d 472, 478-79.) The trial court specifically ruled that the complaint without the MUD record allegations was insufficient to establish probable cause. Stripped of the MUD record evidence, the complaint established only that two men who were convicted of gambling in the past lived where the tipstrix said they lived and that they answered public phones in a bar. Nothing else they did was suspicious enough or out of the ordinary to rise to the level of probable cause. (People v. Adams (1989), 131 Ill. 2d 387, 397-400.) The trial court’s finding was not manifestly erroneous.

VI

The defendants also maintain that the State violated section 7 of the Telegraph Act (Ill. Rev. Stat. 1989, ch. 134, par. 7) and section 108A — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 108A — 3). These statutes are not relevant to the situation before the court. The State did not obtain the content of conversations or telegrams. Thus the statutes do not expand the protection provided by section 6 of the Illinois Bill of Rights. Section 6 of the Bill of Rights was not intended to be coextensive with the eavesdropping statute, but open-ended to include all means of intercepting communications, including “Buck Rogers devices.” (6 Record of Proceedings, Sixth Illinois Constitutional Convention 1525-27 (1970).) Moreover, the confidentiality imposed by these statutes would not prevent the use of a grand jury subpoena to obtain written records in the hands of third parties. (See People v. Jackson, 116 Ill. App. 3d at 436-37 (concerning bank confidentiality statutes).) At most, these statutes demonstrate the public policy that the messages conveyed by utilities be kept confidential. The statutes are, however, not necessary to our determination.

VII

Defendant Rippin also argues that the police officers failed to knock and announce their presence before breaking his door. (See People v. Condon (1992), 148 Ill. 2d 96, 102-03; People v. Saechao (1989), 129 Ill. 2d 522, 530.) It is unlikely that Rippin would have continued to take wagers and would have failed to destroy his records if the officers had announced their presence at his door. The officers were aware that gamblers write their wagers on water soluble or flash paper which can be destroyed in an instant. Nevertheless, the trial court heard two witnesses testify that the police did announce their presence, and the trial court believed the officers. The trial court has the duty of assessing the credibility of the witnesses and the weight to be given their testimony. (Galvin, 127 Ill. 2d at 163.) In this cause, the trial court gave a lengthy and careful explanation of the facts supporting its finding. The trial court’s ruling that the police gave all the necessary warnings is not against the manifest weight of the evidence. See Condon, 148 Ill. 2d at 101; see also People v. Caruso (1971), 2 Ill. App. 3d 80, 81-82 (destructibility of gambling records).

VIII

Defendants also argue that the subpoenas were not valid because they were not properly served. Section 155 — 2 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 155 — 2) provides that the sheriff or coroner will serve the subpoena. Supreme Court Rule 204 (134 Ill. 2d R. 204) allows the service of a subpoena by certified mail with a return receipt. An unknown person served Bell by regular mail or facsimile with five of the subpoenas. Defendants argue that this deficiency renders them invalid.

The trial court did not agree with this argument. The defendants do not have standing to object to the sufficiency of service. Bell could challenge the subpoena because Bell would be subject to contempt sanctions for failure to obey the process. Bell, however, was not concerned with the mode of service and allegedly complied with the subpoena, even though the subpoenas did not state that compliance would be deemed sufficient by delivering the documents to an authorized agent. The defendants could not be held in contempt for challenging the subpoenas, and they have no standing to contest the service. Although the defendants cite People v. Henderson (1971), 133 Ill. App. 2d 336, in that case the defense counsel served the subpoenas on the witnesses. Since the sheriff had not served the witnesses, the defendant could not compel their attendance. In the cause before the court, the defendants’ rights are those concerning the privacy of the MUD records; the defendants have shown no right to have a third party served by a sheriff. The third party has the right to contest the effectiveness of the court’s jurisdiction over it based on an improperly served subpoena. At most, the informal service reflects the laxity of the procedures used by the State throughout the investigation. Although the defendants do not raise the issue, we find the failure to complete the return of service is also a serious lapse of procedure. The failure could prevent litigants from tracing the flow of information from confidential sources to unknown agents of grand juries.

IX

The trial court did suppress the evidence produced by the seventh subpoena. The subpoena compelled the production of the MUD records for October 26 through 30, 1989. Although the subpoena does bear a return of service, it bears a note that the subpoena was a confirmation only of records requested by Wall on October 30. The subpoena was issued on January 2, 1990, delivered January 5, and returnable before the January 17 grand jury. The grand jury had already indicted the defendants on December 1, 1989. Wall’s November 11 complaint utilized the October 26 through 30 MUD records.

The defendants argue that a post-indictment grand jury subpoena is invalid because a grand jury subpoena may not be used for discovery in criminal cases. Once the defendant has been indicted, the State is precluded from using the grand jury for the sole or dominant purpose of obtaining additional information against him. (United States v. Thompson (7th Cir. 1991), 944 F.2d 1331, 1337.) Where the investigation focuses on the facts already covered by the indictment, the subpoena must be quashed because the inquiry of the grand jury has ended. Without the extraordinary purpose of the grand jury, the State lacks the reason behind the relaxation of the fourth amendment protections overridden by a subpoena. After the indictment, the State must comply with ordinary discovery means.

Although we have found no Illinois authority regarding grand jury subpoenas used for discovery during a pending case, we have recently issued several opinions regarding the State’s misuse of subpoenas for discovery in criminal cases. In People v. Hart (1990), 194 Ill. App. 3d 997, the State issued 41 subpoenas duces tecum to various health care providers. The subpoenas directed the respondents to deliver their documents to the State’s Attorney as an alternative to appearing before the trial court; however, no proceedings were actually conducted on the court date. This extrajudicial delivery and inspection was in clear violation of law, which required the materials to be reviewed by a judge before being disclosed to the State. (194 Ill. App. 3d at 1002.) The defendant had no opportunity to contest the issuance of the subpoenas either before the issuance or when the subpoenas were returnable. Thus, the trial court properly suppressed the records subpoenas. Similarly, in People v. Walley (1991), 215 Ill. App. 3d 971, 975, we affirmed the suppression of a subpoena duces tecum where it was issued for a date when no hearing was scheduled. The opportunity to quash a subpoena is one of its most important aspects justifying the exception to the fourth amendment requirement of prior probable cause. 2 W. LaFave, Search & Seizure §4.13(e), at 382 (2d ed. 1987).

These cases show that the trial courts must be diligent to protect the overreaching of the State’s use of the subpoena duces tecum. (See People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 270.) The seventh subpoena was improperly issued, and the trial court could suppress the resulting evidence. That the State obtained the evidence two months prior to the service is not relevant, because the State had the power to serve the subpoena in a timely manner, but it chose not to do so. The State considers the receipt of the MUD records as a fait accompli. Thus, its laxity in complying with the due process requirements has returned to haunt it, because the evidence could have been used by the grand jury had the subpoena been timely and properly served. When the State attempts to use material covered by a privacy interest, the State must show its right to use it. The State has failed to demonstrate it had a valid possession of the information.

Because we have affirmed the suppression of the search warrant, we do not address the defendants’ final issue that the warrant was insufficiently descriptive of the items to be seized.

For the above reasons, the order of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAY FERN, Defendant-Appellant.
    Second District
    No. 2 — 91—0102
    Opinion filed January 21, 1993.
    Rehearing denied February 19, 1993.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock, and Basil Greanias, of Decatur (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Jay Fern, appeals from the circuit court’s order dismissing his petition for post-conviction relief as patently without merit. We affirm.

In October 1988, defendant was charged by indictment with two counts of the unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. pars. 1401(a)(2), 1401(b)(2)). On May 22, 1989, defendant entered a “blind” plea of guilty; the trial court ascertained that counsel had advised defendant of his rights and of the consequences of his plea. The court also admonished defendant of his rights and of the consequences of pleading guilty and informed defendant of the possible penalties including fines and a term of imprisonment of 9 to 40 years on count I, and 4 to 15 years on count II.

After hearing the factual basis for the plea and ascertaining that defendant persisted in entering his plea knowingly and voluntarily, the court accepted the guilty plea and entered judgment on both counts.

Following a hearing on July 19, 1989, the trial court sentenced defendant to a term of 25 years’ imprisonment and imposed a fine of $50,000 as to count I, a Class X felony; the court also sentenced him to 10 years’ imprisonment and imposed a fine of $25,000 as to count II, a Class 1 felony. The terms were to run concurrently. The court fully advised defendant of his right of appeal and the prerequisites to exercising that right, including the necessity of filing a written Rule 604(d) motion to vacate the judgment or reconsider the sentence. (134 Ill. 2d R. 604(d).) Without filing such a post-judgment motion, defense counsel filed a direct appeal to this court, raising sentencing issues only. This court determined that the issues were waived for failure to file a Rule 604(d) motion and affirmed the judgment. People v. Fern (1990), 199 Ill. App. 3d 983.

On December 3, 1990, defendant filed a pro se petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). In his petition, he alleged the ineffective assistance of trial counsel in entering his guilty plea and in failing later to present a motion to withdraw his plea; defendant also alleged that the trial court did not fully admonish him at the time of his plea and that appellate counsel (who was also trial counsel) was ineffective in failing to raise issues concerning the entry and withdrawal of his plea. Defendant prayed that he be allowed to withdraw his guilty plea and, alternatively, that he be resentenced according to terms allegedly agreed upon prior to the entry of his plea.

On January 2, 1991, within 30 days of the filing of defendant’s petition, after considering the contents of the trial record including the transcripts of the proceedings, the trial court issued a detailed written order finding that the “blind” plea was intelligently, knowingly and voluntarily entered and that defendant was fully admonished of the consequences of his plea. The court further opined that, since the “blind” guilty plea was not the result of negotiations, there was no support for defendant’s allegation that a motion to withdraw the plea was contemplated by defendant or his counsel. Accordingly, the trial court dismissed defendant’s petition, and defendant filed this timely appeal pro se on January 22, 1991. This court appointed counsel to represent him on appeal.

The 16 pages transcribed in the record further reveal that at the proceeding wherein defendant entered his guilty plea the court personally and meticulously addressed defendant and explained the nature of the case and the consequences of entering a “blind” guilty plea. First, the trial court ascertained that counsel had advised defendant of his rights under the law and the consequences of entering a plea of guilty and that defendant would not be able to offer evidence in his defense. Defendant acknowledged this affirmatively. The court explained that if defendant persisted in his plea, the court would have no choice but to enter a conviction. The court advised defendant of his right to remain silent and of the penalties available to the court, including terms of 9 to 40 years on count I and 4 to 15 years on count II. The defendant acknowledged that he understood the nature of the charges against him and the sentences that could be imposed and that he could choose to plead guilty or not guilty. The court explained that if he pleaded guilty, he would be giving up his right to a jury or a bench trial. The court then received defendant’s written waiver of a jury trial which defendant acknowledged he had read. The court further advised defendant that he would be giving up his right to confront witnesses or present evidence and would be admitting to the commission of the crimes and that he would be giving up his right to have the prosecution prove the case against him beyond a reasonable doubt. Defendant affirmatively stated that he understood his rights and was willing to give them up.

The court also inquired whether defendant was satisfied with his legal counsel. When asked if his attorneys had kept him informed throughout the proceedings and about any negotiations on his behalf, defendant stated, “They sure have.” He further stated he was satisfied with what they had accomplished. Defendant denied that any promises of any kind or threats had been made to him or his family by the State’s Attorney, by his counsel or any other persons in order to induce him to plead guilty. He denied that anyone had forced him to plead guilty and stated that he was pleading guilty voluntarily. The court then explained that any sentence to be imposed would be completely within the province of the court and that if anyone had forced him into pleading guilty or had made promises to him, these would not in any way be binding on the court and would be totally unenforceable. Defendant acknowledged that he understood this.

The factual basis of the plea was then presented. The prosecution stated that if the cause were to proceed to trial, as to count II, special agent Augustine, who was working in an undercover capacity with a confidential informer, would testify that he had discussions with defendant for the purchase of cocaine and marijuana. An exchange was to be made and, in order to seal the agreement, defendant gave a free sample of 1.54 grams of cocaine (as later determined by chemist Roger Fuelster) to the confidential informant named Spannuth. The exchange took place near the McDonald’s restaurant in McHenry, Illinois. The confidential informer had been searched prior to receiving the delivery from defendant on August 10,1988.

As to count I, the testimony of special agent Augustine and Spannuth was that there were further negotiations where defendant delivered what was later determined by the forensic chemist to be 250.8 grams of high quality, uncut cocaine along with $5,000 in “earnest” money as down payment for the later delivery of 100 pounds of marijuana from the special agent. Defendant delivered the cocaine in the driveway of 518 West Dowell, in McHenry; the agent’s delivery was never completed. Other evidence would include electronic surveillance testimony. Defendant acknowledged that the statement of facts regarding each count was substantially correct.

Upon further inquiry by the court, defendant agreed to persist in his guilty plea as to the offenses charged in the indictment. The court found that his plea was knowing and voluntary; the court found that there was a factual basis for the plea, accepted the plea as to both charges, and entered judgment on both counts. A presentence investigation was ordered.

At the sentencing hearing, special agent Augustine of the United States Drug Enforcement Administration testified, without objection, regarding the contents of taped telephone conversations implicating defendant in the offenses; the tapes were heard by the court. The State also presented a certified copy of defendant’s 1982 conviction of unlawful calculated criminal cannabis conspiracy. The State characterized defendant as a sophisticated drug kingpin in McHenry County who posed as a businessman. The State sought terms of imprisonment of 30 years and 10 years, respectively, for counts I and II in addition to a fine of $100,000 and forfeiture of $5,000.

Among other things, defense counsel pointed out that the State had at one point offered a sentence of 20 years in return for a guilty plea, but defendant had decided instead on a “blind” plea. Defense counsel pointed to defendant’s limited prior record and lack of violence in mitigation.

Exercising his right of allocution, defendant thanked his wife and attorneys for their support and stated he would do his best to “withstand” whatever sentence the court thought was fair and just. After considering the factors in aggravation and mitigation and any agreement the parties might have had, the court determined that, given defendant’s history and character, a sentence of imprisonment was necessary as a deterrent as well as for the protection of the public. The court sentenced defendant to 25 years on count I and 10 years on count II with the sentences to run concurrently along with substantial fines amounting to $75,000.

The court then specifically advised defendant of his right to appeal and the necessity of filing, prior to taking an appeal within 30 days, a written motion setting forth the grounds to have the judgment vacated and for leave to withdraw the plea of guilty.

In essence, defendant correctly contends that the central issue before this court is whether it was an abuse of discretion for the trial court to find that defendant’s petition was frivolous or patently without merit. Defendant acknowledges that the traditional test for a finding of constitutionally ineffective assistance of counsel requires that (1) counsel’s conduct was professionally deficient or objectively unreasonable, and (2) but for this deficiency, there is a reasonable probability that the result of the proceeding would have been different; that is, the deficient performance was prejudicial to defendant. (See Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Citing cases of questionable application here, defendant argues that, because his trial counsel, who was also his appellate counsel, was ineffective both at the plea stage and for failing to move to vacate the judgment prior to taking an appeal, defendant was procedurally defaulted on appeal and that prejudice, the second prong of the Strickland test of ineffective assistance of counsel, need not be shown, but rather may be presumed. In view of the well-established Illinois jurisprudence in this area of the law, we disagree. As we shall discuss further, we believe that defendant must demonstrate both counsel’s deficient performance and prejudice in order to prevail on his claim.

The Post-Conviction Hearing Act provides a remedy to a criminal defendant who claims that a substantial violation of his constitutional rights occurred at trial. The post-conviction proceeding is not an appeal per se but is, instead, a collateral attack on a prior judgment. (People v. Flores (1992), 153 Ill. 2d 264, 272.) To be entitled to post-conviction relief, the defendant must establish that a substantial violation occurred at the proceeding that produced the judgment under attack. (People v. Ruiz (1989), 132 Ill. 2d 1, 9.) In other words, the Act provides that the petitioner may assert claims of a constitutional magnitude which arose in the proceeding which resulted in his conviction. The purpose of the Act is to permit inquiry into the constitutional issues involved in the original proceeding, although a reviewing court may also consider the effectiveness of appellate counsel in raising or failing to raise issues arising in the original proceeding where a defaulted claim stems from the incompetency of appellate counsel and results in prejudice to the defendant. Flores, 153 Ill. 2d at 278.

Under section 122 — 2.1 of the Act, which is applicable here, within 30 days of the filing of the pro se petition, the trial court may summarily dismiss the petition without the appointment of counsel or an evidentiary hearing if it deems the petition “frivolous” or “patently without merit,” and the court’s decision will not be reversed absent an abuse of discretion. (People v. Dean (1992), 226 Ill. App. 3d 465, 467; see also People v. Phillips (1989), 183 Ill. App. 3d 417, 421; Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1.) This statutory post-conviction procedure has passed constitutional muster. See People v. Porter (1988), 122 Ill. 2d 64; People v. Baugh (1985), 132 Ill. App. 3d 713.

The issue on appeal is solely whether the court erred in finding that the petition was frivolous or patently without merit and therefore precluded advancement to the second-stage proceedings provided by the statute. (People v. White (1987), 152 Ill. App. 3d 404, 406; Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2.1(b).) If the petition survives summary dismissal, the court then orders the petition docketed for further consideration, and the State is entitled to attack the sufficiency of the petition and be heard on that point in the trial court before the court can properly order an evidentiary hearing. The trial court may examine the court file of the proceeding in which the petitioner was convicted in arriving at its decision. Ill. Rev. Stat. 1989, ch. 38, par. 122-2.1(c).

We point out that, given the procedural posture of this case, we would have no authority to order an evidentiary hearing even if we agreed with defendant’s position because the State would be entitled to attack the sufficiency of the petition prior to the grant of an evidentiary hearing. (See White, 152 Ill. App. 3d at 406.) We are limited to a consideration of whether the petition was adequate to warrant further proceedings. Any claim not raised in the original or amended petition is deemed waived. (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 3.) Keeping these principles in mind, we therefore analyze this case by focusing strictly on whether defendant’s petition was sufficient to survive summary dismissal by demonstrating that a substantial constitutional violation occurred at the original proceeding wherein he entered his blind plea of guilty.

In the case at bar, the trial court concluded, after careful consideration of the petition and the record, that defendant did not make a substantial showing that he was denied the effective assistance of trial counsel; that he was in fact properly admonished of the consequences of entering his guilty plea; and that the plea was entered knowingly and voluntarily. Implicit in its finding was the conclusion that there was no basis for defendant or his counsel to later withdraw the plea. We find no abuse of discretion in the court’s dismissal of the petition for the reasons that follow.

Defendant appears to argue that the “procedural default” affecting his right of appeal which occurred after the entry of his judgments of conviction and sentences automatically excuses the requirement that he show prejudice in the original proceeding arising from the allegedly deficient conduct of trial counsel. Defendant cites Lozada v. Deeds (1991), 498 U.S. 430, 112 L. Ed. 2d 956, 111 S. Ct. 860 (per curiam opinion), and In re Ring (1990), 141 Ill. 2d 128, in support of his position that prejudicial error should be presumed in this case. We find these cases either inapplicable or distinguishable on the facts. Furthermore, we decline to establish a rule of per se reversible or prejudicial error in the type of case before us.

Lozada involved a Federal habeas corpus proceeding. The defendant had been convicted of four drug offenses in a Nevada State court, and defendant filed no direct appeal. After exhausting State post-conviction remedies, defendant filed a petition for a writ of habeas corpus in the Federal district court. Defendant contended that the ineffective assistance of counsel had deprived him of the opportunity to appeal his convictions in State court because, in particular, he alleged his attorney failed to inform him of his right to appeal, of the procedures and time limitations for an appeal, and of his right to appointed counsel. Furthermore, he alleged that the attorney failed to file a notice of appeal or to insure that he received appointed counsel on appeal. The petition also alleged that defendant had been misled when the attorney told defendant’s sister that his case had been forwarded to the public defender’s office.

Without holding a hearing on Lozada’s claims, a Federal magistrate recommended that the petition be dismissed. The district court agreed and dismissed the petition, rejecting the ineffective assistance claim on the ground that defendant’s allegations failed to satisfy the Strickland test. The court acknowledged that trial counsel’s alleged failure to inform defendant of his right to appeal might constitute conduct below constitutional standards and reasoned that defendant had not indicated what issues he would have raised on appeal and had not demonstrated that the appeal might have succeeded. Thus, the court concluded that the prejudice prong of the Strickland test had not been met. The district court denied Lozada a certificate of probable cause to appeal the denial of habeas corpus relief, stating that defendant had failed to show any prejudice from counsel’s alleged errors. The United States Court of Appeals for the Ninth Circuit also denied a certificate of probable cause to appeal the denial of habeas corpus. Defendant filed a writ of certiorari to the Supreme Court.

In its per curiam order, the Supreme Court first explained that, for the issuance of a certificate of probable cause, in order to make a substantial showing of the denial of a Federal right, a petitioner who has been denied relief in a district court must demonstrate that: the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further. The Court concluded that the Court of Appeals erred in denying Lozada a certificate of probable cause under the “substantial showing” test where Lozada made a substantial showing that he was denied the right to the effective assistance of counsel. The Court believed that the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner than the one followed by the district court and noted that prior Federal appellate decisions presumed prejudice (see, e.g., Abels v. Kaiser (10th Cir. 1990), 913 F.2d 821). It appears, that, on the facts of that case, the defendant made a “substantial showing” which raised a presumption of prejudice sufficient to allow the case to proceed in the Federal courts.

We do not believe that the holding of Lozada is dispositive of the case at bar. First, Lozada involved the interpretation of Federal procedural law only and did not decide a constitutional issue that would be binding on this court. In construing our own State laws, we are not bound by Federal court decisions other than, in appropriate cases, those of the United States Supreme Court; although such decisions are entitled to respect, they have only advisory effect upon the decisions of this court. (Office of Lake County State’s Attorney v. Human Rights Comm’n (1992), 235 Ill. App. 3d 1036, 1043.) State courts are not required to follow a United States Supreme Court precedent unless the result therein is mandated by the Constitution of the United States. (People v. Gillespie (1990), 136 Ill. 2d 496, 502-03.) We believe the Lozada case merely stands for the proposition that, in a Federal habeas corpus proceeding, a more relaxed “substantial showing” test may be appropriate to allow the case to go forward procedurally if the defendant raises facts sufficient to raise a reasonable or debatable question of counsel’s deficient performance such that prejudice could be presumed. Lozada did not decide substantively that the prejudice prong of the Strickland test need not ever be met at some point in the proceedings. Lozada also did not decide as a threshold question whether, in a summary State post-conviction proceeding, the challenge to the entry of a guilty plea such as the one at bar is subject to the two-pronged Strickland test.

Additionally, the facts in Lozada concerning counsel’s performance appear to show a more egregious neglect of the case than the record would show in the present case. Finally, we observe that, in contrast to Lozada (and Abels), defendant here has, in fact, raised in his petition the issues which could have been raised on direct appeal. We shall discuss the facts of the present case in more detail below. We conclude that Lozada is both legally and factually distinguishable and should be limited to its particular factual setting.

We believe that the relaxed “substantial showing” test used in Lozada is inapplicable to the present case, which involves the challenge to a guilty plea in a State summary post-conviction proceeding. Indeed, it is well settled that the two-pronged Strickland test applies to a challenge to a guilty plea where the ineffective assistance of counsel is alleged (People v. Jones (1991), 144 Ill. 2d 242, 254; People v. Huante (1991), 143 Ill. 2d 61, 67, both relying on Hill v. Lockhart (1985), 474 U.S. 52, 57, 88 L. Ed. 2d 203, 209, 106 S. Ct. 366, 369-70; accord People v. Hammonds (1991), 210 Ill. App. 3d 854, 858), and we consider ourselves bound by the precedents cited here.

Defendant also argues that this court should not decide the merits of his post-conviction claims based on whether his appeal might succeed. Defendant’s reliance upon In re Ring (1991), 141 Ill. 2d 128, in this regard is misplaced. Ring involved the discipline of an attorney who, without properly advising his client, failed to pursue an appeal by neglecting to file an appellate brief and allowing the appeal to be dismissed. While pointing out the seriousness of counsel’s failure to pursue the appeal, the court stated, in dictum, that it would proceed to decide the issue of attorney misconduct and the sanctions therefor without inquiring into whether the client’s exercise of his right to appeal would have been fruitful. (Ring, 141 Ill. 2d at 142.) That the supreme court would decide an attorney discipline matter without an inquiry into the prejudice suffered by the client offers no support to defendant’s position here where, based on precedent, we have decided that the prejudice prong of Strickland is applicable to our inquiry. As relied on by defendant, Ring is simply neither precedential nor relevant to the case before us.

Having determined the appropriate test for proper review, we now address the merits of defendant’s post-conviction petition. In order to prevail in a post-conviction proceeding, the defendant has the burden of making a substantial showing that his constitutional rights have been violated; he must support the allegations by affidavits, the record or other evidence containing specific facts, or the petition may be dismissed. Mere conclusions are insufficient to entitle defendant to an evidentiary hearing. People v. Dean (1992), 226 Ill. App. 3d 465, 469; People v. Avitia (1989), 178 Ill. App. 3d 968, 969-70.

In support of his petition, defendant alleged that his defense counsel coerced him into pleading guilty and had told him he had little or no chance of winning at trial; he also argued that he would have been allowed to withdraw his plea but for the ineffectiveness of trial counsel. He alleged that counsel misrepresented the sentence that he would have received including the possibility that he could receive a term of imprisonment of 30 to 60 years or natural life. Afraid of receiving such a harsh penalty, defendant agreed to a “blind” guilty plea only in return for a 7- to 15-year term as promised by his counsel and agreed to by the State and the sentencing judge. Defendant also alleged that the trial court failed to admonish him of the various consequences of his guilty plea.

The trial court correctly found that the trial record not only does not support these allegations affecting the voluntariness of his plea, but contradicts them as well. Where the trial record refutes defendant’s assertions that his plea was not knowingly and voluntarily entered, courts may properly dismiss or deny a defendant’s petition. See, e.g., People v. Jones (1991), 144 Ill. 2d 242; People v. Huante (1991), 143 Ill. 2d 61; People v. Jett (1991), 211 Ill. App. 3d 92; People v. Hammonds (1991), 210 Ill. App. 3d 854; People v. Cotton (1974), 19 Ill. App. 3d 476.

Our review of the record shows that the trial court was meticulous in ascertaining whether any promises or threats were made by the State or by defense counsel to induce defendant’s guilty plea. Defendant stated unequivocally that no such promises were made. Defendant stated on the record that he was properly advised by his counsel and was satisfied with his performance. The court made it clear that this was a “blind” plea and that any sentence would be within its discretion. Defendant’s allegation that he entered a “blind” plea in return for a 7- to 15-year term is self-contradictory, illogical and contrary to the record. There was no negotiated plea entered here in which the trial court could have concurred. Defense counsel agreed on the record in the presence of defendant that there was no agreed disposition of the charges. In a plea agreement, the defendant is offered consideration in exchange for his agreement to enter a guilty plea which one who enters a “blind” plea does not receive. (People v. Eckhart (1989), 127 Ill. 2d 146, 152.) The court carefully explained this to defendant. Thus, defendant could not have legitimately expected the particular sentence which he now claims was offered him. The common-law record does show that the State in fact offered defendant a 20-year term which he rejected in favor of a blind plea. Defendant agreed with the factual basis for the plea and submitted himself to the mercy of the court at sentencing.

Additionally, our careful examination of the record, as detailed in our recitation of the facts, reveals that the court meticulously advised defendant of the consequences of his plea and of his right to appeal. He acknowledged affirmatively and repeatedly that he understood the consequences of his plea. After sentencing, defendant was advised of the proper procedure to perfect his appeal. The admonitions given by the trial court before and after the plea cannot simply be disregarded. To accept defendant’s claim would require us to characterize the court’s lengthy and exhaustive admonitions as merely a perfunctory or ritualistic formality — a characterization we are unwilling to make. (Jones, 144 Ill. 2d at 263; see Hammonds, 210 Ill. App. 3d at 860.) The main thrust of his petition is his disappointment with the sentence he received. Based on the foregoing, there is simply no basis for holding that defendant’s guilty plea was not voluntarily made; he cannot now legally complain merely because he is dissatisfied with the length of his sentence. (People v. Robinson (1987), 157 Ill. App. 3d 622, 629.) The mere belief or hope of a defendant that he will get a shorter sentence by pleading guilty would not permit him to withdraw his plea when that expectation is unfulfilled. (People v. Jones (1985), 135 Ill. App. 3d 1023, 1033.) Based on the foregoing, we conclude that the plea was entered knowingly and voluntarily and there is no basis for a claim of ineffective assistance of counsel at the plea stage — either because of counsel’s deficient conduct or on the basis of prejudice.

In his petition, defendant also claimed that his trial counsel (who was also appellate counsel) was ineffective in failing to withdraw his plea and this in turn prejudiced his right to appeal. He claimed that, on appeal, he would also have raised the issue of the voluntariness of his plea as well as the excessiveness of his sentence. In his memorandum of law in support of the petition, defendant also added that counsel misrepresented to him that he had little or no chance of winning at trial, but defendant believed he had a defense of entrapment. Without evidentiary support or an affidavit, defendant further alleged in his petition that he instructed his counsel to file a motion to withdraw his guilty plea, but counsel failed to do so.

For trial counsel to be ineffective for failing to file a Rule 604(d) motion to withdraw the guilty plea (134 Ill. 2d R. 604(d)), it must be shown that he was requested to do so. (People v. Jett (1991), 211 Ill. App. 3d 92, 95.) The Strickland test applies equally here. (People v. Wilk (1988), 124 Ill. 2d 93, 108.) Thus, it must be shown that counsel’s performance fell below an objective standard of reasonableness in failing to follow Rule 604(d) and that this failure resulted in substantial prejudice to defendant. Jett, 211 Ill. App. 3d at 98.

All we have is defendant’s bare and unsubstantiated allegation that his counsel failed to follow Rule 604(d). Even if we assume that counsel should have but failed to file a Rule 604(d) motion, defendant still has not established that he suffered substantial prejudice; that is, that there is a reasonable probability that, but for counsel’s unprofessional error, the result of that proceeding would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant has the burden of showing to the trial court the necessity of withdrawing his plea, and it is within the discretion of the trial court to determine whether the plea may be withdrawn. (People v. Smithey (1983), 120 Ill. App. 3d 26, 31.) The withdrawal of a guilty plea may be allowed in circumstances where the plea resulted from a misapprehension of law or fact, or in cases where it appears the plea was entered as a result of a misrepresentation by counsel, the State’s Attorney, or someone else in authority. (Smithey, 120 Ill. App. 3d at 31.) We find none of those circumstances present here.

We have already determined that the plea was not involuntary on the basis of promises made to defendant. Defendant’s only remaining claim is that he had a viable defense of entrapment for trial purposes and that counsel “misrepresented” that defendant had little or no chance of winning at trial. The expectation or hope of a lesser sentence or the convincing nature of the evidence against the accused is a consideration suggesting the advisability of a guilty plea. (People v. Jones (1991), 144 Ill. 2d 242, 269-70.) Taking defendant at his word, it appears to us that counsel made a strategic decision that a guilty plea was in defendant’s best interest to avoid a greater sentence of up to 40 years’ imprisonment.

Furthermore, the evidence against defendant was more than sufficient to convict him of the offenses — notwithstanding his subjective opinion that he had a viable defense of entrapment. The court heard the factual basis for the plea which would include the testimony of an undercover agent and an informant regarding defendant’s culpable role in the drug transactions. Tape recordings of defendant’s conversations implicating him in the offenses were introduced later in the proceedings. There was an exchange of a large amount of high quality, uncut cocaine of the type ordinarily handled by regular drug dealers. Defendant also had a prior felony drug conviction which might have been used to show he was predisposed to commit the offenses. It is very unlikely that the entrapment defense would have worked to his benefit at trial. See People v. Huante (1991), 143 Ill. 2d 61, 73 (defendant had only remote chance of acquittal where State’s evidence included testimony of undercover officer).

A trial counsel’s informed strategic choices are virtually unchallengeable as instances of ineffective assistance of counsel. (Jones, 144 Ill. 2d at 270.) Our review of the evidence offered in the record leads us to believe that counsel’s decision to advise defendant to plead guilty was an informed, strategic choice. Had counsel’s strategy succeeded in obtaining a significantly shorter sentence, it is doubtful that defendant would now be arguing his counsel was incompetent. Defendant has not shown a probability that he would have prevailed in withdrawing his guilty plea; therefore, the prejudice requirement has not been met. We conclude that the claims raised in defendant’s post-conviction petition could not have succeeded in the trial court or on appeal. The same Strickland test and analysis would be applied to appellate counsel. See Flores, 153 Ill. 2d at 283.

For the foregoing reasons, the order of the circuit court dismissing defendant’s post-conviction petition is affirmed.

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


text:
    AUDREY SCHOENBECK, Indiv. and as Special Adm’r of the Estate of Herman Schoenbeck, Deceased, Plaintiff-Appellant, v. THE DU PAGE WATER COMMISSION et al., Defendants-Appellees.
    Second District
    No. 2 — 91—1091
    Opinion filed January 29, 1993.

      James E. Pancratz, of James E. Pancratz, Ltd., and Cooney & Conway, both of Chicago, for appellant.
    James S. Jendryk, Michael Resis, and Ellen S. Martin, all of Querrey & Harrow, Ltd., of Chicago, for appellee Du Page Water Commission.
   JUSTICE BOWMAN

delivered the opinion of the court;

Plaintiff, Audrey Schoenbeck, individually and as special administrator of the estate of her husband, Herman Schoenbeck, appeals from an order of the circuit court of Du Page County granting the motion for summary judgment of defendant, the Du Page Water Commission (Commission). Plaintiff brought this wrongful death action after Herman died from injuries received in an explosion at a work site. On appeal plaintiff contends the trial court erred in determining that defendant owed no duty to her husband. We affirm.

In December 1983 the Commission contracted with the City of Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the Commission and its customers. In 1986 the Commission entered into a contract with, among other municipalities, the City of Naperville. The Commission agreed to sell, and Naperville agreed to buy, lake water. Like all the municipalities involved in the contract, Naperville had its own waterworks, or “unit system.” The Commission’s system for transmitting water from Chicago’s water supply to Commission customers was differentiated by designating it as the “waterworks system.” The contract called for Naperville to construct, operate, and maintain an underground pressure adjusting station at each point where water was delivered from the Commission’s waterworks system into Naperville’s own unit system.

On March 14, 1990, an explosion occurred at the site of construction of one of Naperville’s pressure adjusting stations. Herman Sehoenbeck, a construction laborer, suffered serious injuries in the blast and later died. In her complaint plaintiff alleged that the Commission owned, constructed, maintained, and controlled the underground vault where the explosion occurred and that the negligent conduct of the Commission resulted in her husband’s death.

The Commission moved for summary judgment essentially on the basis that it had no responsibility for, or control over, the construction of the pressure adjusting station and, thus, owed no duty to the plaintiff’s decedent. The motion was supported by the affidavit of Arthur Malm, the manager of facilities construction for the Commission. Plaintiff’s memo in opposition to the motion was supported by the discovery deposition of Mr. Malm, a copy of the contract between the Commission and Naperville, correspondence from Malm regarding Naperville’s pressure adjusting stations, and relevant contract documents and specifications. Following oral argument the trial court granted the Commission’s motion. Since there were other defendants named in the suit, the trial court made the findings required by Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and plaintiff timely filed this appeal.

Summary judgment is a drastic remedy which should be granted only when the right of the moving party to relief is free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill. App. 3d 226, 239.) A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21; Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill. App. 3d 226, 239.) After reviewing the record concerning this motion we are of the opinion the order granting summary judgment was proper.

Defendant’s motion was made in the context of a wrongful death action. In an action for negligence the plaintiff must set out sufficient facts to establish that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused injury to plaintiff. (Wojdyla, 148 Ill. 2d at 421; Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.) Defendant claims it owed no duty to Herman Sehoenbeck. The existence of a duty of care must be determined by the court as a matter of law (Wojdyla, 148 Ill. 2d at 421; Eddings v. Dundee Township Highway Com missioner (1985), 135 Ill. App. 3d 190, 197), and, absent a showing from which the court can infer the existence of a duty, no recovery by plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. (Vesey, 145 Ill. 2d at 411; Rowe v. State Bank of Lombard (1988), 125 Ill. 2d 203, 215.) In our opinion, plaintiff did not make the showing necessary to withstand a motion for summary judgment.

Plaintiff characterizes Naperville as an independent contractor, building the pressure adjusting station for the Commission under the authority of the Commission’s charter. She posits that, as a chartered public corporation, the Commission had an affirmative, nondelegable duty to take precautions against accidents at the construction site. Plaintiff cites North Chicago Street R.R. Co. v. Dudgeon (1900), 184 Ill. 477, Chicago Economic Fuel Gas Co. v. Myers (1897), 168 Ill. 139, Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, and Reith v. General Telephone Co. (1974), 22 Ill. App. 3d 337, in support of this proposition. Each of these cases involved a publicly chartered corporation which contracted for work to be done by an alleged independent contractor. The corporations subsequently disclaimed liability for injury to plaintiff at the work site, claiming they had no control over the independent contractor. The courts held essentially that a corporation engaged in an activity which is dangerous to others, under a State charter or similar license, may not evade liability for negligence by delegating work to an independent contractor.

Plaintiff correctly states the rule found in the authorities she cites. The problem is she does not show that Naperville was an independent contractor or that the work involved here was authorized pursuant to the Commission’s charter authority. The controlling statutes and the contract between the Commission and Naperville reflect that the station was built by Naperville, as part of Naperville’s own water system, and under Naperville’s charter authority.

Plaintiff does not dispute that the Commission and Naperville each had their own, separate waterworks. However, although she nowhere directly confronts the question, we detect a recurring implication in her arguments that the pressure adjusting station may have, in fact, been part of the Commission’s waterworks system. This implication is unfounded.

The contract between the Commission and Naperville indicates that the station, when built, would be an integral part of Naperville’s municipal water system. The contract states in relevant part:

“The points of delivery shall be defined as the points of outlet where the Lake Water delivered hereunder leaves the Waterworks System and enters a Unit System. These points will be ten feet downstream from the Commission’s metering stations. *** Each Charter Customer shall receive its supply of Lake Water downstream of the Commission’s metering stations at pressures that will vary from time to time. Each point of delivery shall have a pressure increasing/reducing station. Each Charter Customer is responsible for the siting, design, construction, operation, maintenance and replacement of the pressure increasing/reducing stations to convey water from the Waterworks System into the Unit System.”

Further, according to the contract, each charter customer’s operation of “its pressure increasing/reducing stations” (emphasis added) may not cause backflow into the Commission’s system, nor may operation of “the Customer’s” pressure adjusting facilities cause a drop in pressure in the Commission’s system. Not only does the contract put the responsibility for building and operating the pressure adjusting facility squarely on Naperville, but it also indicates that Naperville will “receive” its water at varying pressures. Once received, it is up to the customer to increase or reduce the pressure, as needed. According to the parties’ contract, the pressure adjusting station was a functional and essential segment of Naperville’s unit system.

While we conclude that the station was part of Naperville’s water system, plaintiff’s contention that it was authorized by the Commission remains. However, the Commission’s contract with Naperville nowhere indicates that Naperville was building the station for the Commission, or at the Commission’s request, or that the Commission authorized Naperville to build it. Rather, among many other agreements, Naperville agreed to be “responsible for the siting, design, construction, operation, maintenance and replacement” of the station. Thus, it appears Naperville simply took on the job of building the station as one of its obligations under the contract to buy water from the Commission.

We observe in this regard that the Commission did not need the pressure adjusting station in its waterworks system. The purchase of Lake Michigan water by the municipalities was optional. (See Ill. Rev. Stat. 1989, ch. 24, par. 11 — 135—1.) Had Naperville opted not to buy water, the Commission would not have run its system up to the delivery points into Naperville. The absence of Naperville as a customer would not have affected the integrity of the Commission’s system, however. The Commission would have delivered the water to its remaining customers, with or without Naperville. In contrast, Naperville needed the station in order to receive Lake Michigan water safely into its own system. While not necessary to the Commission’s waterworks, the station was an integral and essential part of Naperville’s unit system.

Plaintiff focuses heavily on language in the contract which provides that the Commission is obligated to reimburse Naperville for reasonable costs of design and initial construction of the pressure adjusting station. She maintains that this provision shows that the station was part of the Commission’s water delivery network and, therefore, was being constructed under the Commission’s charter. However, although it is not addressed by the parties, we take judicial notice that the Code authorizes the Commission to contract to reimburse a municipality when the municipality has paid or obligated itself for the development or the construction related to a Commission project. (See Ill. Rev. Stat. 1989, ch. 24, par. 11 — 135—1.) The statute does not imply that, as a result of reimbursement, the Commission will acquire control over a facility which is part of a municipal water system. Rather, reimbursement appears to be part of a statutory scheme to allow the municipalities, which gave rise to the Commission in the first place, to recapture some of their own costs. (See Ill. Rev. Stat. 1989, ch. 24, par. 11 — 135—1 et seq.) Too, as we have said, there is nothing in the contract to indicate that Naperville was acting as a contractor for the Commission. To the contrary, Naperville was constructing a facility for its unit system. We note in this regard that the contract called for Naperville to provide a site for the pressure adjusting station without reimbursement. In sum, the reimbursement provision does not reflect that Naperville was building the station under the authority of the Commission’s charter or that the Commission enjoyed control over construction of the station.

Moreover, Naperville did not need authority from the Commission to move ahead with the construction project; it had its own authority. Section 11 — 130—1 of the Illinois Municipal Code (Code) states: “Any municipality may *** construct waterworks or construct improvements to its waterworks.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 130— 1.) The statute defines the term “waterworks” to mean and include “a waterworks system in its entirety or any integral part thereof, including mains, hydrants, meters, valves, standpipes, storage tanks, pumping tanks, intakes, wells, impounding reservoirs, or purification plants.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 130—2.) Since the pressure adjusting station was essential to receiving Lake Michigan water into the existing municipal system, its construction was authorized by the statutory language. Naperville neither needed nor sought any authority from the Commission to build the station.

Our supreme court long ago stated that an alleged independent contractor will be regarded as an agent of the corporation for whom he is doing the work if, with the corporation’s assent, he is exercising a chartered power of the corporation “which he could not have exercised independently of the charter of such corporation.” (Chicago Economic Fuel Gas Co., 168 Ill. at 146-47.) Here, Naperville properly exercised its own charter authority to construct its own pressure adjusting station. Consequently, Naperville was not an agent of the Commission, and the Commission did not have a duty as to the safety of the construction site.

Plaintiff next contends that the Commission had a duty as a result of its involvement in construction of the pressure adjusting station. For this proposition she invokes section 414 of the Restatement (Second) of Torts, which provides:

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts, §414 (1965).

Plaintiff urges that the Commission retained control of the construction site, relying first of all on the contract, which states in pertinent part:

“Initial construction and future modification of plans and specifications of the pressure increasing/reducing stations shall be submitted to the Commission for review and approval, which shall not be unreasonably withheld.”

She relies also on a letter from Arthur Malm to Naperville in which Malm indicated that the Commission reserved the right to inspect the pressure adjusting station to ensure it had been constructed in accord with the approved plans and specifications. The letter also provided for approval of change orders. We do not think the evidence cited by plaintiff, even collectively, demonstrates the level of control which warrants imposition of a duty upon the Commission.

Comment c to section 414 of the Restatement addresses the degree of control an employer must retain before he incurs liability for injury caused by an independent contractor at a work site:

“It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Restatement (Second) of Torts §414, Comment c, at 388 (1965).

In this case the Commission had the contractual right only to review and approve Naperville’s plans and specifications for the initial construction and later modifications of the pressure adjusting station. Arthur Malm indicated at his deposition that he, in fact, did review the engineering plans and specifications. However, Malm also testified that the Commission retained review and approval rights for two reasons, neither of which pertained to overseeing or directing the actual construction or the safety of the work site. First, since the two would ultimately be connected, the Commission wanted to confirm that Naperville’s unit system would be compatible with the Commission's own waterworks system. Second, the Commission, which was obligated to reimburse Naperville for construction of the station, did not want to pay more than was necessary. Review of Naperville’s plans and modifications would help control reimbursement costs. Malm indicated that if Naperville incurred costs without Commission approval, or contrary to the approved plans, it would merely run the risk of not being reimbursed for those costs.

The letter plaintiff cites, written by Malm to Naperville, was not part of the contract and was not necessarily binding on the municipality. However, read in its entirety the letter was, more than anything else, an explanation of the procedures the municipality was to follow in order to secure reimbursement from the Commission. For example, regarding change orders, the letter states:

“Change orders resulting in substantive changes to the operation or function of the station, or change orders where additional reimbursement by the Commission will be requested, must be approved in advance by the Commission.”

Likewise, we believe the reservation of the right to inspect pertained, not to proper and safe construction as plaintiff urges, but to assuring that Naperville’s requests for reimbursement were justified.

Finally, in his affidavit Malm testified that no one from the Commission designated any of the construction work methods, supplied materials for the project, or participated in scheduling of work or inspection of the construction site. At his deposition Malm again stated that, to his knowledge, no one from the Commission or the Commission’s consulting engineering firm ever inspected the site or performed work, operated equipment, or checked work in progress at the site.

The evidence cited by plaintiff is not persuasive that the Commission controlled Naperville as to the methods or details of constructing its pressure adjusting station. In our view, the Commission did not retain so much of a right of supervision that Naperville was not free to do the work in its own way. Accordingly, a duty on the Commission’s part cannot be predicated on its involvement in construction of the pressure adjusting station.

Plaintiff’s reliance on Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, is not helpful to her position. In Haberer the defendant village had hired a safety consultant service for a construction project being performed by a contractor. The consultant prepared a detailed loss control program which imposed safety responsibilities on the contractor. The consultant was present at the construction site every day, inspected the site regularly, held safety meetings, and advised the contractor’s safety director of violations. Despite this involvement, the court refused to uphold summary judgment for the plaintiff. Thus far, Haberer favors the conclusion we reach here. The defendant in Haberer was far more involved on a day-to-day basis, specifically with the safety aspects of its project, than the Commission was with any day-to-day aspect of Naperville’s project. However, the Haberer court found that it was not clear whether the consultant could order work halted or order the removal from the site of unsafe equipment. The court held that a factual question remained as to whether Sauget retained sufficient control over the safety aspects of the project to warrant the imposition of liability. Contrary to plaintiff’s claim that the court ruled in favor of plaintiff, the matter was merely remanded.

We do not believe that Haberer compels a remand here, however, because the evidence in this case reveals that the Commission retained only rights of review and approval for reasons unconnected with either the precision of the actual construction or the safety of the workplace. Plaintiff did not show that the Commission had any control at all over the safety of the jobsite. Nothing in the contract gave the Commission a right to take any action to ensure the safety of the workers. Too, according to the testimony, Naperville’s refusal to honor the Commission’s rights would not trigger any authority on the part of the Commission to halt work or otherwise direct the work. Instead, the Commission could refuse to reimburse Naperville for the costs of the pressure adjusting station. There are no factual questions remaining as to whether the Commission retained such control over the safety aspects of the project that it should be subject to a duty, and thus liability, for the injuries complained of.

There is no merit to plaintiff’s final argument that the Commission owed the decedent a statutory duty of care. Plaintiff invokes the following language from the Code:

“The commission has full and complete supervision, management, and control of the waterworks system, or the common source of supply of water, or both, as provided in the ordinances or resolutions for acquiring and operating the same, and in their maintenance, operation, and extension.” (Ill. Rev. Stat. 1989, ch. 24, par. 11-135-3.)

This language leaves no doubt the Commission was to have complete control of the waterworks system. The question is, which waterworks system? When the cited provision is read in context, it is evident the reference is to its own, rather than any municipality’s waterworks. In fact, the very next sentence provides:

“The commission is authorized to contract with the municipalities which established the commission for a supply of water to those municipalities, *** and the corporate authorities of those municipalities are authorized to enter into contracts with the commission.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 135—3.)

The statutory language contemplates separate systems, with the Commission having control over only its own system. We have already explained that the pressure adjusting station was part of Naperville’s system. Although the statute undoubtedly gives rise to a duty on the part of the Commission where the Commission’s own waterworks system is concerned, that duty does not extend to the unit system of Naperville or any other municipality.

Absent a showing from which the existence of a duty could be inferred, no recovery by plaintiff was possible, and summary judgment in favor of defendant was proper. (See Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.) In light of this conclusion, we need not address any other matters raised by the parties.

For the reasons set forth above, the order of the circuit court of Du Page County granting summary judgment to defendant is affirmed.

Affirmed.

DOYLE and QUETSCH, JJ., concur.