text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILMON BOSLEY, Defendant-Appellant.
    Second District
    Nos. 2—87—1108, 2—88—0289 cons.
    Opinion filed April 27, 1990.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

On April 8, 1987, the defendant, Wilmon Bosley, was indicted for nine counts of aggravated criminal sexual abuse and four counts of aggravated criminal assault against six different victims. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 14(b)(1), 12 — 16(c)(1).) Following a severance of counts, the State proceeded on counts VIII and IX, which charged the defendant with one count each of aggravated criminal sexual assault and aggravated criminal sexual abuse against six-year-old D.R. After a bench trial, the court found the defendant guilty of both counts.

On September 15, 1987, a negotiated plea agreement was reached wherein the defendant agreed to plead guilty to count V of the indictment, charging aggravated criminal sexual assault against D.R.’s 11-year-old sister, C.R. In exchange for the plea, the State agreed to nolpros the remaining counts of the indictment and assured the defendant he would not receive a sentence consecutive to those received for the aggravated sexual offenses against D.R.

The defendant’s motion for a new trial was denied, and on October 21, 1987, a sentencing hearing was conducted and the court imposed three extended, concurrent 55-year terms of imprisonment. Defendant’s motion to reconsider the extended terms imposed was also denied, and his notice of appeal was filed. The defendant’s subsequent motion to withdraw his guilty plea as to count V was denied on March 16, 1988, and notice of appeal filed the same day. On defendant’s motion, we consolidated the appeals.

The defendant contends the extended-term sentences imposed must be reversed and the cause remanded for resentencing where: (1) they were doubly enhanced by the victim’s ages; (2) they were the result of the consideration of several improper aggravating factors; and (3) they were excessive due to the court’s reliance on facts not in evidence, its own personal opinions, and its failure to consider the defendant’s psychological evaluation. We reverse and remand for re-sentencing.

The defendant’s bench trial occurred on September 9, 1987. After the court determined D.R., then seven years old, was competent to testify, she was shown two dolls which she correctly differentiated as male and female by identifying certain of their anatomical parts. D.R. referred to the vagina as the “coochie” and the penis as a “ding-a-ling.” D.R. related that one unspecified time, the defendant, who was the pastor of the Sunrise Church of God in Waukegan which her family attended, was taking her family to church. On that occasion, the defendant reached behind him and rubbed D.R.’s “coochie.” D.R. related that her brothers and sisters were in the car along with her grandmother, who was blind. D.R. related another incident when her family was assisting the defendant in cleaning the church. As D.R. washed down the benches, the defendant approached her, picked her up and wrapped her legs around his torso. He unbuttoned his trousers, exposing his “ding-a-ling,” which, according to D.R., he then put in her “coochie.” The defendant admonished D.R. not to talk about the incident.

D.R. related a third incident in which the defendant was driving her family to the hospital to visit her grandfather. She was sitting in the front seat on this trip, and while en route to the hospital, the defendant grabbed her head and forced her to put her mouth on his “ding-a-ling.” D.R. testified the only person she told about the incident in the church was her sister, C.R.

After the court found her competent to testify, C.R., then 12 years old, testified she saw the defendant rub her sister D.R.’s vagina during a car trip. She recalled that when her family was cleaning the church, D.R. was in the front of the church cleaning off the benches. C.R. stated D.R. told her of a particular incident involving the defendant which had occurred at the church. C.R. also recalled the defendant taking the family to the hospital to see her grandfather. She observed the defendant holding D.R.’s head down in his lap.

D.R.’s brother, J.T., testified he recalled an incident where the defendant reached behind him while he was driving and rubbed D.R.’s vagina. J.T. recalled another incident where the family was with the defendant cleaning his church on a Saturday. At that time, J.T. saw the defendant pick up his sister D.R. and hold her on his lap. D.R.’s legs were around the defendant’s waist, and he was pressing his body towards her.

The defendant testified on his own behalf, recounting his relationship with D.R.’s family. He explained that besides being their pastor, he had a standing invitation for dinner and often took his meals there. He acknowledged that on a number of occasions he would find the children’s behavior wanting and would “put the belt on their butts.” While acknowledging that as part of the procedure of their church he sometimes hugged the children, he specifically denied touching D.R. in her private area. He also denied rubbing D.R.’s vagina and forcing her to perform oral sex on him.

The court found the defendant guilty of aggravated criminal sexual assault as charged in count VIII and aggravated criminal sexual abuse as charged in count IX of the indictment.

Subsequently, on September 15, 1987, the parties represented to the court that they had reached a negotiated plea agreement on count V of the indictment, which charged the aggravated criminal sexual assault of C.R. In exchange for his plea of guilty to that offense, the defendant was assured he would not receive a consecutive sentence to his sentences on the previous convictions of counts VIII and IX and the remainder of the charges would be nol-prossed.

The assistant State’s Attorney presented the factual basis for the plea. C.R. would testify that the defendant had her lie down on her living room couch, pulled down her underwear, exposed his penis to her and then put his penis in her vagina. She would further testify that this incident occurred on a Friday evening in February following attendance at church. Her brother, T.R., would testify that he saw the defendant lying on top of C.R. on the couch in the living room and saw him moving up and down on top of her. The court accepted the defendant’s plea of guilty.

As noted, the defendant was sentenced to the Department of Corrections for three extended, concurrent 55-year terms of imprisonment.

The defendant first argues his extended sentences must be reversed and the cause remanded for resentencing because they were improperly doubly enhanced based on the ages of the complainants. The classes of the offenses and, thus, the applicable penalties, were enhanced once from Class 1 to Class X (aggravated criminal sexual assault) and from Class A misdemeanor to Class 2 felony (aggravated criminal sexual abuse) by virtue of the fact the defendant was over the age of 17 and each of the complainants was under the age of 13. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 14(b)(1), 12 — 16(c)(1).) The punishments were enhanced a second time when the court imposed extended terms pursuant to sections 5 — 8—2 and 5 — 5—3.2(c) of the Unified Code of Corrections (Code of Corrections) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2; Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(c)).

The State argues the defendant’s extended sentences were proper where the court specifically relied on section 5 — 5—3.2(c) of the Code of Corrections in imposing them. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(c).) That section provides:

“(c) The court may impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed and who was convicted of aggravated criminal sexual assault where the victim was under 18 years of age at the time of the commission of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(c).)

We point out subsection (c) relates specifically only to convictions of aggravated criminal sexual assault and was amended by Public Act 85 — 1433, effective January 11, 1989, deleting the phrase “who was at least 17 years old on the date the crime was committed.” Ill. Ann. Stat., ch. 38, par. 1005 — 5—3.2 (Smith-Hurd Supp. 1989).

The State argues subsection (c) is — and the trial court so construed it — an exception to the line of authority which states that the victim’s age cannot be considered as an aggravating factor at sentencing when the age of the victim is inherent in the offense. (See, e.g., People v. Giller (1987), 162 Ill. App. 3d 209; People v. Fletcher (1987), 156 Ill. App. 3d 405; People v. Campos (1987), 155 Ill. App. 3d 348.) The State’s position is that the intent of subsection (c) is to provide authority for the trial court to impose an extended-term sentence on any defendant convicted of an aggravated criminal sexual assault on a person under the age of 18, regardless of the factor which aggravated the crime to a felony in the first place.

Although the State’s position finds support in People v. Ferguson (1989), 132 Ill. 2d 86, 98-99, it ignores the fact subsection (c) was added to section 5 — 5—3.2 by Public Act 85 — 1428, effective July 1, 1987. The offenses at bar were alleged to have been committed during the period December 1, 1986, to March 29, 1987. It is well established that a defendant is entitled to be sentenced in accord with the law in effect at the time of the offenses. (People v. Cross (1979), 77 Ill. 2d 396, 409; People v. Hanserd (1989), 189 Ill. App. 3d 924, 928.) “The constitutional prohibition against ex post facto laws prevents the punishment for an offense being increased by an amendatory act taking effect after the offense has been committed. Except where the punishment is mitigated by the provision of the new law the defendant is entitled to have his punishment fixed under the law as it stood at the time of the commission of the crime.” (People v. Ostrowski (1920), 293 Ill. 91, 93.) Justice and fundamental fairness dictate relaxation of the principle of waiver when the defendant has failed to raise an ex post facto law issue. See People v. Hollins (1972), 51 Ill. 2d 68, 70.

The addition of subsection (c) clearly did nothing to mitigate the punishment applicable to the defendant at the time of the offenses. At that time, section 5 — 5—3.2 of the Code of Corrections provided:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 5 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
* * *
(3) When a defendant is convicted of any felony committed against:
(i) a person under 12 years of age at the time of the offense.” Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(3)(i).

In People v. Ferguson (1989), 132 Ill. 2d 86, 98, the Illinois Supreme Court held that “the age of the victim should not be considered for the imposition of an additional penalty [an extended term] under section 5 — 5—3.2(b)(3)(i) where the penalty for the underlying offense has already been enhanced based on the age of the victim.” (Emphasis added.) (132 Ill. 2d at 98.) The supreme court believed its holding was supported by the subsequent addition of subsection (c) to section 5 — 5— 3.2. It regarded subsection (c) to be “an example of a clear expression of legislative intent to permit a double enhancement of the penalty,” an expression which it found to be lacking in section 5 — 5—3.2(b)(3)(i). 132 Ill. 2d at 98-99.

In light of the effective date of subsection (c) and the holding in Ferguson, we conclude the defendant’s extended sentences were improper. Accordingly, the defendant’s three extended, concurrent 55-year terms of imprisonment are reversed. Because it appears from the record that the court placed significant weight on the victim’s ages in imposing the extended terms, we remand the cause for resentencing. (See Ferguson, 132 Ill. 2d at 99-100.) Also, because certain of the remaining issues may arise on remand, we briefly address them.

Initially, we note sua sponte an apparent conflict between the court’s oral pronouncement of the sentence and its written sentencing order. Orally, the court sentenced the defendant to “a term of 55 years in the Department of Corrections, as to each of the offenses, the two offenses. And the remaining charges are dismissed.” (Emphasis added.) Its written order shows its judgment that the defendant is guilty of the crime[s] of “Aggravated Criminal Sexual Assault — Aggravated Criminal Sexual Assault — Aggravated Criminal Sexual Abuse” and that the defendant is “sentenced to the Department of Corrections for a period of fifty-five (55) years — said sentence to run concurrently with each charge.” (Emphasis added.) It thus appears the defendant was sentenced to extended terms of 55 years’ imprisonment for each of two Class X felonies and one Class 2 felony.

Extended-term sentences, however, may be imposed only for “the class of the most serious offense of which the offender was convicted.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a).) Assuming for purposes of this discussion that the formal written judgment and sentence order of the court controls over its oral pronouncements (People v. Hayslette (1982), 107 Ill. App. 3d 647, 650), we find the extended-term sentence imposed on the defendant for his conviction of aggravated criminal sexual abuse must be reversed for that additional reason, as well. His conviction of that offense remains intact inasmuch as it was a separate offense against D.R. and not a lesser-included offense of the aggravated criminal sexual assault offense against her.

Next, we agree with the defendant that the court erred in considering he fell within the aggravating factors relating to the holding of public office and being obliged by the duties of his office or by his position to prevent the particular offense committed or to bring the offenders committing it to justice. (Ill. Rev. Stat., 1986 Supp., ch. 38, pars. 1005 — 5—3.2(a)(4), (a)(5); Ill. Rev. Stat. 1985, ch. 38, par. 2 — 18.) We believe the court was correct, however, in finding the defendant fell within the aggravating factor relating to a defendant who holds a “position of trust or supervision” as further provided in the statute. (Ill. Rev. Stat., 1986 Supp., ch. 38, par. 1005 — 5—3.2(a)(12).) Inasmuch as the record shows the court considered these three aggravating factors in tandem rather than separately, we do not find the error contributed significantly to the length of the sentences imposed, particularly where there were numerous other factors in aggravation, including prior criminal activity.

We find the record does not support the defendant’s further contention that the court triply enhanced his sentence by also considering the complainants’ ages in determining the length of the extended terms imposed. The comments made by the court concerning the girls’ ages was a reference to the extended-term provision. The court’s rundown of the factors in aggravation did not include the girls’ ages.

Finally, we reject the defendant’s excessive-sentence contention, wherein he claims the trial judge relied on facts not in evidence, improperly injected his own personal opinion on the subject, and failed to consider the defendant’s psychological evaluation.

The court’s comment concerning the rate of recidivism for sex offenders who receive no counselling was a personal observation made in the course of discussing the defendant’s rehabilitative potential. The court was not relying on facts not in evidence. Although such personal observations are not encouraged, they may be found to be of no consequence where the record shows the court otherwise considered proper sentencing factors. (People v. Steppan (1985), 105 Ill. 2d 310, 322-23.) We believe the court’s comment was logically prompted in this instance by reason of the defendant’s conviction 20 years earlier for indecent liberties and was of no untoward consequence in the exercise of its sentencing discretion.

We further reject defendant’s contention the court fashioned the sentence pursuant to its own personal opinion, citing in support People v. Bolyard (1975), 61 Ill. 2d 583. Defendant points only to the fact that the “entire tenor” of the court’s remarks indicate it found the instant offenses to be particularly egregious. That the instant offenses are considered particularly egregious is clearly reflected in the present sentencing scheme which allows double enhancement of the penalty for such offenses. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(c); Ferguson, 132 Ill. 2d at 99.) That aside, Bolyard is not persuasive where the sentencing practice which required remand there was the court’s substitution of its own personal policy in the place of statutorily mandated sentencing standards. No similar personal policy of the court is evidence in the instant cause.

We digress at this point to deny the defendant’s motion for reconsideration of our August 8, 1989, order granting the State’s motion to strike defendant’s appendix A which we ordered to be taken with the case. Appendix A is a copy of a study of sentencing patterns as applied to felony sex offenders and nonsex offenders. The defendant argues that had the court’s assertedly improper sentencing remarks been subject to an adversarial response, “counsel may have been able to direct the court to such studies” as appendix A and thereby change its opinion concerning the rate of recidivism. The thrust of the study does not concern recidivism, however. Rather, it explores whether sanctions against sex offenders are disproportionately harsh in relation to those received by nonsex offenders, and it concludes they are. As the State notes, evidence which is not part of the record is not to be considered by a reviewing court. (People v. Phillips (1987), 159 Ill. App. 3d 483.) Moreover, appendix A does not qualify as a citation of relevant authority in support of the defendant’s argument on appeal. (113 Ill. 2d R. 341(e)(7).) Accordingly, we reaffirm our prior decision striking defendant’s appendix A.

Finally, we reject the defendant’s contention the court gave no consideration to the report of the defendant’s psychological evaluation. The record shows the trial judge specifically mentioned he considered the report, albeit he did not mention that part of the report which opined the defendant “may have been victimized himself at least on two occasions as a child, though he denied ever being molested.” The trial court need not state each factor it considered in imposing sentence. People v. Petrovic (1986), 146 Ill. App. 3d 857.

For the reasons expressed above, the defendant’s sentences are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Sentences reversed; cause remanded.

REINHARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. JOHN P. REYMAR, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2—88—0514
    Opinion filed April 26, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

Jim Edgar, the Secretary of State, appeals from an order of the circuit court directing him to issue a judicial driving permit (JDP) to the defendant, John P. Reymar. The Secretary contends that the defendant was not a first offender under section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 500) and was therefore ineligible for a JDP. We agree, and we reverse the circuit court’s order directing the Secretary to issue a JDP to defendant. Although the trial court placed the defendant on supervision, the issue of his eligibility for supervision was not raised on appeal and, therefore, is not considered in this opinion.

On February 10, 1983, the defendant was placed under court supervision for driving under the influence of alcohol. Less than five years later, on January 9, 1988, the defendant was arrested and charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 501), and improper lane usage (Ill. Rev. Stat. 1987, ch. 95 V2, par. 11 — 709). At the time of the arrest, the defendant took a breathalyzer test which disclosed a blood-alcohol concentration of 0.17. Immediately thereafter, the defendant was served with a notice of summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.1); the Secretary imposed a minimum statutory suspension of the defendant’s driving privileges, having determined that the defendant was not a first offender within the meaning of section 11— 500 of the Code.

On March 23, 1988, the defendant pleaded guilty to the charges, and the trial court imposed a fine of $500 and placed him on 12 months’ supervision, ordered him to attend counseling, and perform 80 hours of public service. The defendant also received a fine of $50 for the improper lane usage offense. At the same proceeding, the defendant filed a petition for a JDP, which the circuit court issued for purposes of travel to and from work and to obtain drug treatment. On March 31, 1988, in a letter to the clerk of the court, the Secretary stated his belief that he did not have the statutory authority to issue the JDP because the defendant was not a first offender; the Secretary requested the circuit court to reassess the issuance of the JDP. The trial court denied this request, and on May 3, 1988, again ordered the Secretary to issue a JDP to the defendant. The Secretary appeals from that final order.

The defendant-appellee has not submitted a brief. We consider the merits of this appeal under the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The Secretary contends that it was error for the trial court to order the issuance of a JDP because the defendant was arrested for DUI on January 9, 1988, and this occurred less than five years from the defendant’s assignment to court supervision on February 10, 1983. We agree that the defendant was ineligible for a JDP because, under section 11 — 500, he was not a “first offender,” which is defined for our purposes as “any person who has not had a previous conviction or court assigned supervision for [DUI] *** within the last 5 years” (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 500). It is clear from the language of the statute that the five-year period commences with the date of the defendant’s prior conviction, assignment to supervision, or guilty plea, and not from the date of his prior arrest. Since the defendant was arrested and charged with the offense of DUI within five years of his prior assignment of supervision for DUI, it is clear that the defendant should not have been issued a JDP. See People v. Brom (1989), 189 Ill. App. 3d 910, 912; see also People v. Mof fat (1989), 192 Ill. App. 3d 326; People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96.

Accordingly, the judgment of the circuit court, insofar as it orders the issuance of a JDP to defendant, is reversed.

Reversed in part.

McLAREN and REINHARD, JJ., concur.


author: PRESIDING JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS SMITH, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—3000
    Opinion filed December 29, 1989.

      Glenn K. Seidenfeld, Bradford R Lyerla, and Gregory S. Gallopoulos, all of Jenner & Block, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Thomas Smith, and a codefendant were indicted for the murder, aggravated sexual assault and concealment of the homicidal death of Cheryl Cloud (victim). Both defendants moved to suppress inculpatory statements made while in police custody. After a joint suppression hearing, the court denied both defendants’ motions. The cases were severed for trial. An oral and written statement of defendant were admitted in evidence at his separate trial.

On August 11, 1988, a jury found defendant guilty of murder, aggravated sexual assault and concealment of a homicidal death. The trial court denied defendant’s post-trial motion and entered judgment on the jury verdict. Defendant appeals.

Defendant’s principal assignment of error is the denial of his motion to suppress his custodial inculpatory statements. For purposes of this appeal, it is not necessary to relate the gruesome details involved in this case. The alleged crime occurred on January 31,1987.

On February 7, 1987, at approximately 5 p.m., the defendant was taken into police custody in connection with the Cheryl Cloud homicide investigation. The arrest was made at the home of a relative of defendant’s girlfriend. At the time of the arrest, defendant was wearing slacks but was naked from the waist up. His girlfriend testified that he had no visible marks or bruises on his body.

Defendant was taken to the police station where he was required to remove his clothes. Because an aggravated sexual assault usually involves resistance by the victim, the police examined defendant’s body to determine the existence of any signs of a recent struggle. An abrasion was discovered on defendant’s left bicep, which was photographed and included in an official police report. The arresting officers did not see or record any other injuries. Defendant was then given a paper jump suit to wear while he was handcuffed by his left arm to a retaining ring in an interview room. A similar examination was made of the codefendant, which resulted in the discovery of numerous physical injuries. Codefendant’s injuries were included in a separate police report.

Defendant was interviewed by various detectives throughout the course of his custody. The State presented testimony that defendant was given food and water, permitted to use the bathroom, and not beaten. On February 8, 1987, at 4:45 p.m., the detectives attempted to get an extension of the police department’s 24-hour rule, which requires a defendant to be formally charged within 24 hours of arrest or else released. The extension was denied. At 5 p.m., formal charges of murder were approved against the defendant. At 5:30 p.m. defendant made an inculpatory oral statement and, at 7:35 p.m., defendant made substantially the same statement, which was transcribed by a court reporter and signed by defendant. The statement indicated that it was made freely and voluntarily. At the time the statement was made, the court reporter took a Polaroid photo of the defendant and attached the photo to the transcribed statement. The Polaroid was of poor quality and depicted defendant fully clothed. The court reporter photographed defendant from a left angle, and it is inconclusive from the Polaroid whether or not the right side of defendant’s lip is split. The statement and photo were admitted into evidence, over defendant’s objection, at the suppression hearing.

At the hearing, defendant contended that he was physically coerced into making the two inculpatory statements. Kathy Diver, defendant’s girlfriend, testified that she had seen defendant dressed only in slacks immediately prior to his arrest. At that time, she did not see any bruises, cuts or abrasions on defendant’s lip, right shoulder, right side, or lower right back.

Defendant testified that Detective Thiel beat him twice and threatened more severe beatings if defendant did not cooperate. The first beating took place when Thiel brought the codefendant into defendant’s interview room for a confrontation. Defendant called his codefendant a liar. Then Detective Thiel kicked defendant in the chest and told him to shut up. This testimony was corroborated by the codefendant at the joint suppression hearing. Shortly thereafter, Detective Thiel interrogated defendant and punched him in the mouth, attempted to kick defendant in the groin and punched defendant in the right ribs and the lower back a number of times. Defendant also testified that he was denied food and bathroom privileges until he made a statement.

The defense offered photos of defendant taken by George Broest on February 9, 1987, at 2:15 p.m. The State stipulated to the fact that Broest was an investigator for the Cook County public defender’s office and that the 12 photographs of defendant which he took on February 9, 1987, at 2:15 p.m., depict defendant with a split lip and bruises on his right shoulder, right side and lower right back. The photos were admitted in evidence by stipulation.

In rebuttal, the State presented testimony of the detectives that merely denied defendant’s contentions and stated that they did not know how defendant received the injuries depicted in the photographs. The State also presented testimony by the emergency medical technician for Cook County jail that screened defendant during intake at Cook County jail. She had no independent recollection of the examination and testified solely from a report she made at the time of the examination. The report was dated February 8, 1987, 2 p.m., and did not note any injuries. This is an obvious error because defendant was at Area 6 at that time. The defendant was not required to disrobe for the examination. For this reason, all of the alleged injuries, except the split lip, would not be visible. When confronted with Broest’s photos of defendant, Detective Thiel testified, “I don’t know where the bruises came from.” The assistant State’s Attorney conceded to the trial court, “I cannot explain to this court how Mr. Smith got his injuries.”

The State did not present any evidence establishing that the defendant was out of police custody from the time of his arrest on February 7, 1987, at 5 p.m., up to the time when the photographs were taken by Broest on February 9, 1987, at 2:15 p.m., prior to defendant’s arraignment.

After arguments by counsel, the trial court denied the defendant’s motion to suppress the inculpatory oral and written statements. In denying the motion, the trial court found that: (1) the State met its burden of proving by a preponderance of the evidence that defendant’s statements were made voluntarily and without coercion; (2) the doctrine of People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, requiring the State to prove by clear and convincing evidence that the defendant’s statements were not the product of coercion, is inapplicable to the instant case; and (3) even if the Wilson doctrine applied, the State met that burden.

It is undisputed that when defendant was arrested on February 7, 1987 and taken to Area 6, he had only a bruise on his left bicep. He remained in Area 6 until approximately 2:15 p.m. on February 9, 1987, when he was taken to court for arraignment. It is also undisputed that photos taken prior to arraignment clearly show that he had additional injuries which defendant claims were inflicted to coerce his statements. The photo taken by the court reporter when the statement was made shows defendant fully clothed so that most of the injuries, if they existed, were concealed by his clothing. The camera angle made the split lip inconclusive.

In People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, our supreme court said:

“[W]hen it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession. [Citations.] This requires more than the mere denial by the State’s witnesses that the confession was coerced.” (116 Ill. 2d at 40.)

In the case at bar, “it is evident that *** defendant has been injured while in police custody.” The sole prerequisite for application of the Wilson doctrine is that it be evident that the defendant suffered injuries while in police custody. The State’s sole ground for arguing that the trial court did not err when it refused to apply the Wilson doctrine here is that “defendant did not establish that he was injured while in police custody.” Defendant does not dispute that the trial court made such a finding, and he accepts the general legal principle that the trial court’s findings of fact are not to be disturbed unless against the manifest weight of the evidence. In this case, however, the record contains undisputed evidence that defendant was injured while in police custody and no evidence whatever to support a contrary finding. Therefore, the trial court’s ruling that the Wilson doctrine does not apply cannot stand.

Under the Wilson doctrine, once a defendant establishes that it is evident his injuries occurred while in police custody, the burden shifts to the State. It is precisely because the state is in a better position to explain the cause of these injuries that the law then requires clear and convincing evidence that “the injuries were not inflicted as a means of producing the confession.” Normally, the State may carry its burden by representing testimony of the various people that came into contact with the defendant throughout the course of his custody denying the defendant’s allegations of coercion. Once it becomes evident that the defendant actually sustained injuries while in police custody, however, the law requires “more than the mere denial by the State’s witnesses that the confession was coerced.” (116 Ill. 2d at 40.) The Wilson court went on to hold:

“Under such circumstances the burden of establishing that the injuries were not administered in order to obtain the confession, can be met only by clear and convincing testimony as to the manner of their occurrence. See People v. Thomlison [1948], 400 Ill. 555, [81 N.E.2d 434].” (116 Ill. 2d at 40, quoting People v. LaFrana (1954), 4 Ill. 2d 261, 267, 122 N.E.2d 583.)

It follows from this that the State did not discharge its burden. The State presented no evidence as to how the defendant sustained his injuries. If the defendant were injured in the lock up, the State could have one of its officers testify to that effect. If the defendant fell down the stairs, the State could have produced testimony supporting this contention. The State did not produce any evidence of how defendant was injured. For this reason, the State failed to carry the burden required under Wilson. Accordingly, we find that the trial court erred in failing to suppress the oral and transcribed statements of the defendant.

The case law cited by the State to support its contention that the trial court did not err in refusing to apply the Wilson doctrine is inapposite. The State cites cases where the burden has not yet become that of clear and convincing evidence because the defendant was unable to demonstrate that the injuries were sustained while in police custody. In the case at bar, the defendant was able to meet this initial burden of persuasion, thereby invoking the mandate of Wilson.

Defendant’s oral and written inculpatory statements were admitted into evidence at his trial at which the jury returned a guilty verdict. “Because the State failed to show by clear and convincing evidence that the confession was not the product of coercion *** the defendant’s statement should have been suppressed as having been involuntarily given. The use of a defendant’s coerced confession as substantive evidence of his guilt is never harmless error, and the cause must therefore be remanded for a new trial.” People v. Wilson (1987), 116 Ill. 2d 29, 41-42, 506 N.E.2d 571; Payne v. Arkansas (1958), 356 U.S. 560, 568, 2 L. Ed. 2d 975, 981, 78 S. Ct. 844, 850.

It is not necessary for us to consider the other argument raised by defendant on appeal because it will not affect the retrial.

Accordingly, defendant’s convictions are reversed, his sentences are vacated, and this cause is remanded for a new trial.

Reversed and remanded.

SCARIANO and DiVITO, JJ., concur.


author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF MYRA JOYCE ZELLS, Petitioner-Appellee, and MARTIN B. ZELLS, Respondent-Appellant (Beermann, Swerdlove, Woloshin, Barezky & Berkson, Appellee).
    First District (1st Division)
    Nos. 1—89—0143, 1—88—0622 cons.
    Opinion filed March 19, 1990.
    Rehearing denied May 25, 1990.

      Joel S. Ostrow, of Chicago, for appellant.
    Melvyn H. Berks, of Des Plaines, for appellee Myra Zells.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On December 14, 1987, the marriage of Myra and Martin Zells was dissolved and the marital property divided. Both parties appeal, arguing that the division of property was inequitable. For the reasons below, we affirm in part and reverse and remand in part.

Myra, age 46, and Martin, age 48, were married on August 30, 1964, and separated in May 1983. The parties have two children, both of whom are now adults. Mrs. Zells, who has no significant experience in work outside the home, attended one year of college before she was married and was a homemaker during the course of the marriage. Mr. Zells is an attorney with his own private practice. He suffered a heart attack in March 1984, and the related problems and high blood pressure, exacerbated by stressful divorce proceedings, have forced him temporarily to reduce the number of hours he devotes to his law practice.

After protracted proceedings, characterized by the trial court as “a three ring circus,” a judgment for dissolution of marriage was entered. The provisions and rulings that the parties challenge are summarized below.

Two experts testified to the value of Zells’ law practice. Mrs. Zells’ expert, Burton Babtech, gave valuations for the goodwill asset ranging from $66,000 to $131,000, and believed the higher figure to be more accurate. He valued the entire practice at $150,000. Zells’ expert, Jerald Richman, valued the tangible assets of the practice at approximately $25,000, and stated that the practice had no goodwill because 50% to 60% of the business came from two clients who stated that they would not stay with the practice if it was sold. Outlining its calculations in the judgment for dissolution, the trial court valued Zells’ law practice at $92,010, of which $77,000 was goodwill. The law practice was awarded to Zells.

The trial court included several minor contingent fee cases in the value of the law practice, but specifically excluded two major contingent fee cases. Only one case now remains. The trial court ruled that due to the speculative nature of the fees, to prevent one party from receiving a “windfall,” the parties would share the contingent fees equally if and when they were paid.

The parties owned one-half interest in a condominium in Florida, with the other half owned by Mrs. Zells’ father, Sam Solomon. At trial, Mr. Solomon testified that the condo was worth $52,000, while Zells testified that the condo was worth $70,000, based on a brokerage agreement. The trial court found Mr. Solomon’s testimony more reliable, as he had greater familiarity with the property, and set the value at $52,000. The parties’ interest of $26,000 was awarded to Mrs. Zells.

On March 28, 1984, the trial court had issued an order to modify the temporary maintenance and child support, retroactive to March 21, 1984. Hearing on modification was deferred until further discovery, but no hearing was ever held. Based on the orders entered, and the need for child support and maintenance, the trial court ruled that it had authority to modify the temporary maintenance in the judgment for dissolution. The trial court found that the difference between the reasonable amount of maintenance, and the amount Zells actually paid, from April 1, 1984, to April 1, 1987, was $5,250, and ordered Zells to pay that amount to Mrs. Zells.

The marital home was encumbered with a mortgage of approximately $36,000 in July 1984, which was the last time a mortgage payment was made. As a result of the parties’ failure to pay, the mortgage went into foreclosure. Mr. Solomon bought the mortgage for $43,000, and paid the foreclosure costs and property taxes for 1984. The trial court found that Mrs. Zells, who was under court order to pay the mortgage out of her maintenance, stopped paying the mortgage in July 1984, while she was receiving support. The court also found that at the same time, Zells had reduced the support payments from $500 per week to $250 per week. Accordingly, the trial court found that the failure to pay the mortgage was the fault of both parties, and ordered both to reimburse Mr. Solomon the cost of the purchase of the mortgage plus 9% simple interest from the date of closing, plus the closing costs and the 1984 taxes.

Zells’ sister, Evette, worked for him as an attorney. Beginning in 1985, until May 1, 1986, Zells paid Evette by checks which she did not cash. But on March 13, 1986, Evette deposited the checks, totaling approximately $16,000, and wrote a check for that amount to Zells, which he never endorsed. The trial court found that any outstanding debt to Evette was satisfied by the transfer of Zells’ boat to her, and that there was no marital debt to Evette.

Before the action for divorce was filed, the parties’ children had a bank account with $26,000. An order on May 10, 1984, gave Mrs. Zells leave to withdraw $500 from the account. On May 29, 1984, a second order lifted any and all restraints on Mrs. Zells to withdraw money from the account for the children’s expenses, to the immediate extent of $7,500. Subsequently, Mrs. Zells withdrew a total of $26,000 from the account, which she testified was used to pay the children’s expenses. The trial court found that the money was reasonably used during the course of the divorce proceedings and ordered the parties to each repay half of the $26,000.

The trial court found that although a maintenance award to Mrs. Zells of $2,000 to $3,000 per month would have been appropriate, given the lifestyle the couple had maintained during the marriage, Zells’ present monthly income was approximately $3,000 before taxes and payments of court-ordered insurance. The trial court awarded Mrs. Zells $250 per week in maintenance, reviewable on June 1, 1988, and again in six years.

The division of property awarded approximately $194,000 to Mrs. Zells, and approximately $224,000 to Mr. Zells. The trial court stated that it had attempted to divide the marital property equally, and that the difference was due primarily to the nonliquid nature of the assets that were awarded to Mr. Zells.

After trial, Mrs. Zells’ counsel presented a petition for fees and costs, seeking an award against both parties. Mrs. Zells opted to represent herself in the hearing on attorney fees, which generated almost 1,000 pages of transcripts. Her attorney fees amounted to $50,000. The trial court found that the amount of the fees was reasonable, and ordered Mrs. Zells to pay $42,000 of the fees, while Zells was ordered to pay the remaining $8,000.

In a post-judgment hearing on December 14, 1987, Mrs. Zells stated: “[My attorney] told me that for three years if I went to work he was going to withdraw from this case. He threatened me and told -me I was going to ruin my case if I went to work.” On January 4, 1988, Zells filed a notice of appeal. On January 13, 1988, Zells filed motions for rehearing and for sanctions based on Mrs. Zells’ statement in the December 14 hearing. The trial court dismissed the motion for sanctions and ruled that the notice of appeal divested it from jurisdiction to reconsider the judgment. Zells filed a notice of appeal from those rulings on February 24, 1988.

The parties challenge the factual findings and orders discussed above, but the record supports the trial court. The trial court found that the length of the marriage and the parties’ respective contributions to the marriage justified an equal distribution of the marital assets. The distribution of the marital assets was supported by the record, and the trial court discussed and detailed its findings and rulings in the judgment for dissolution. We find no abuse of discretion and therefore affirm.

Both parties challenged the maintenance award of $250 per week, but the award reflected the trial court’s consideration of the factors set forth in section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504), and balanced Zells’ ability to pay against Mrs. Zells’ reasonable monthly expenses and the expectation that she would become self-supporting. The maintenance award, and its reviewability, were reasonable and will not be disturbed. Zells’ post-judgment motions for rehearing and for sanctions were filed after he filed his notice of appeal, and the trial court properly ruled that it had no jurisdiction. Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292; Dunn v. Dunn (1979), 71 Ill. App. 3d 649, 390 N.E.2d 136.

Mrs. Zells argues that requiring her to pay $42,000 of the fees was error, given the disparity in the earning potential of the parties. Generally a party must pay his or her own attorney fees. (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71; In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.) Here, any disparity in the economic positions of the parties was not so great or permanent as to relieve Mrs. Zells of the obligation of her attorney fees. The division of marital property was equitable and approximately equal, the difference due primarily to debts that Mrs. Zells was ordered to pay, which are not appealed, and to Zells receiving the law practice, which was not a liquid asset. The record further supports the expectation that Mrs. Zells will be able to become self-supporting. The trial court did not err, therefore, in requiring Mrs. Zells to pay the largest share of her own attorney fees.

We find, however, that the trial court erred in separating the major contingent fees from the value of the law practice and dividing them between the parties, because in so doing, the trial court implicitly treated the fees as marital assets. But the nature of contingent fees indicates that they were assets of neither the marital estate nor the law practice.

No Illinois court has specifically determined whether contingent fees should be considered marital assets. The issue has been addressed only in Louisiana and Wisconsin, both of which are community property States. Contingent fees are designated “community assets” by statute in Louisiana (see Due v. Due (La. 1977), 342 So. 2d 161; Pellerin v. Pellerin (La. App. 1989), 550 So.2d 1250), valued by the amount of services rendered before the dissolution of the marriage. In a related context, Bader v. Cox (Tex. App. 1986), 701 S.W.2d 677, held that contingent fees were assets of a dissolved partnership with a present value determined by the value of services rendered before the dissolution, but that ruling was supported by cases dealing with receivables with a known value. (E.g., In re Lester (N.Y. App. Div. 1978), 61 A.2d 935, 403 N.Y.S.2d 33 (accounts receivable); Balfour, Guthrie & Co. v. Hansen (1964), 227 Cal. App. 2d 173, 38 Cal. Rptr. 525 (causes in action).) Wisconsin has indicated that contingent fees are marital assets (see Weiss v. Weiss (1985), 122 Wis. 2d 688, 365 N.W.2d 608), but a later unpublished opinion, Holgate v. Holgate (1987), 139 Wis. 2d 856, 407 N.W.2d 566, stated that the trial court had discretion to treat contingent fees as either marital assets or income subject to support and maintenance. Thus, while the treatment of contingent fees appears unsettled, their value is acknowledged.

Three factors lead to the conclusion that contingent fees are not marital assets. First, the nature of a contingent fee contract indicates that an attorney has neither the right to receive the fee until the case is disposed of, nor any assurance that he ever will receive the fee. Second, the amount of the contingent fee depends on the amount of the award or settlement in the case; therefore, its ultimate value, if any, remains highly speculative during the pendency of the case. Here, for example, expert witnesses for both parties testified that while Zells’ contingent fee cases were potentially quite valuable, they were also potentially worthless. Third, the worth of a contingent fee to an attorney, if any, remains intangible until the firm receives cash or other consideration for the services rendered.

Given the intangibility of a contingent fee, its unascertainable and speculative value, the aleatory nature of the right to receive it and the uncertainty of collection, we conclude that a contingent fee cannot be considered an asset of either the marital estate or of the law practice from which it is derived. Rather, a contingent fee represents merely the unenforceable expectation of future income. Accordingly, the trial court erred in treating the contingent fees as assets and awarding Mrs. Zells any share of the future income.

We recognize, however, that the contingent fees, although neither assets nor divisible, had value to both parties, a value analogous to an investment in the law practice. By incurring expenses attributable to the contingent cases, Zells increased the likelihood of receiving future income. Thus, the expenses were comparable to an investment, which Zells received when he was awarded the law practice.

But to the extent that the law practice incurred expenses attributable to the contingent cases, the net income, and therefore, the net worth of the practice, was reduced. Zells was awarded the law practice, and the marital property that Mrs. Zells received to match the value of the law practice was reduced by the amount of the expenses. Zells received the investment, but Mrs. Zells received no property of corresponding value.

For purposes of the dissolution, no ultimate value can be placed on the contingent fees, but their present value is represented by the expenses incurred before the dissolution. Here, there was no determination of how much Zells spent on the contingent cases before the dissolution, but we assume that economic necessity balanced the expenses against Zells’ estimate of the probability of success and the expected amount of recovery. Since Zells received the value of the investment and its yield in the form of future income, Mrs. Zells must receive the present value of the investment, which is an amount equal to the expenses attributable to the contingent cases prior to dissolution.

We need not address Zells’ argument that sharing the contingent fees with a nonattorney violated rules of ethics. We note, however, that to accept Zells’ argument might necessarily require barring attorneys’ spouses from receiving a share of any assets or income derived from legal fees. The difficulties with such a rule are patent.

In summary, we affirm the trial court’s findings of fact and distribution of marital property. We further affirm the maintenance award, the dismissal of Zells’ post-judgment motions, and the allocation of payment of Mrs. Zells’ attorney fees. We reverse the trial court’s ruling with respect to the contingent fees, however, and remand with instructions to determine the expenses attributable to the remaining contingent fee case prior to the dissolution, and to award Mrs. Zells an amount of marital property equal to that amount.

Affirmed in part; reversed in part and remanded with instructions.

CAMPBELL and MANNING, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY JUSTICE MANNING,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD COX, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2849
    Opinion filed March 30, 1990.

      MANNING, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Gregory R. Koster and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Jean T. McGuire, Special Assistant State’s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an order of the circuit court of Cook County revoking the probation of Leonard Cox (defendant) and sentencing him to six years’ imprisonment and two years’ mandatory supervised release. Defendant’s sentence was imposed following a stipulated probation revocation hearing. The sole issue presented for our review is whether defendant has been denied due process of law, where the trial court did not admonish defendant of his right to a hearing or establish that defendant voluntarily stipulated to certain facts or understood the consequences of his stipulation. For the reasons set forth below, we affirm.

In August 1985, defendant was charged by indictment for the burglary of Kahlil Mohmoud’s store located at 5959 South State Street in Chicago, Illinois, on or about July 21, 1985. On December 12, 1986, defendant entered a negotiated plea of guilty to the charge and was subsequently sentenced to 48 months’ probation, with the following conditions: (1) participation in the Safer Basic Skills Program; (2) one-year home confinement seven days a week from 7 p.m. to 7 a.m.; and (3) one year’s periodic imprisonment, stayed pending the outcome of defendant’s home confinement and participation in the Safer Program.

On March 31, 1987, the State filed a petition to vacate defendant’s probation, based upon defendant’s failure to enter the Safer Program. After finding that defendant violated his probation, the trial court resentenced defendant to 48 months’ probation, one-year periodic imprisonment, one-year home confinement, beginning May 27, 1987, and immediate enrollment in a GED program.

On June 25, 1987, the State filed a second petition to vacate defendant’s probation, alleging that defendant had violated the terms of his home confinement. Defendant failed to appear for the hearing, and the court issued an arrest warrant.

On August 31, 1987, defendant, represented by counsel, proceeded to a stipulated hearing on the violation of probation charge. The stipulation indicated that if called to testify, defendant’s probation officer would state that defendant did not receive the telephone calls the officer made to defendant’s home on June 6, 1987, at 8:15 p.m. and 8:10 p.m. on June 23, 1987. Defendant presented no evidence as to the allegations contained in the violation of probation petition.

The trial court entered a finding of guilty on the violation of probation charge and proceeded to a hearing in aggravation and mitigation. Defendant waived his right to a presentence investigation report and presented no evidence in mitigation of the violation. The State relied solely upon aggravating factors presented during an in-chambers conference and in the pretrial report. Subsequently, the trial court sentenced defendant to six years’ imprisonment.

On appeal, defendant asserts that the consequences of a determination that a probation order has been violated are so serious that a defendant is entitled to many of the same due process safeguards accorded to a defendant at a trial to determine his guilt. Defendant contends that the trial court’s order revoking his probation must be reversed because the stipulation presented during the probation revocation hearing was tantamount to a guilty plea pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402) and the court failed to provide defendant with the basic constitutional due process safeguards outlined in Rule 402. Specifically, defendant asserts that the trial court failed to minimally determine whether: (1) defendant knew the specific allegations in the petition; (2) defendant was aware of his right to a hearing with counsel present; (3) defendant’s admission was not based on any promises or coercion; and (4) defendant understood the consequences of his admission. See People v. Followell (1987), 165 Ill. App. 3d 28, 518 N.E.2d 706.

The State initially responds that defendant has waived review of this issue by failing to object at. trial or in a written post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The State argues that defendant was represented by counsel during the hearing, and thus, should not now be allowed to circumvent the waiver rule by raising the argument for the first time on appeal. As to the State's waiver argument, we believe it is necessary to determine whether any due process deprivations have occurred here which affect the substantial rights of defendant. We therefore invoke the plain error doctrine. See Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.

The State alternatively argues that Rule 402, which prescribes the actions to be taken prior to the trial court’s acceptance of a guilty plea, is not applicable to probation revocation proceedings under our supreme court’s decisions in People v. Beard (1974), 59 Ill. 2d 220, 225-27, 319 N.E.2d 745, 748. It is well established in Illinois that Supreme Court Rule 402 (107 Ill. 2d R. 402) requires that the trial court give admonitions to a defendant who pleads guilty to an offense. Defendant relies on People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289, as establishing these admonitions must also be given in revocation of probations proceedings.

In Pier, the defendant, in his post-conviction petition, alleged that his admission of the violation of probation was induced by an unfulfilled promise of the State’s Attorney to recommend a different sentence than that imposed. Our supreme court stated that due process of law requires that a defendant charged with violating probation should be entitled to many of the same safeguards accorded to a defendant at a trial to determine his guilt. (Pier, 51 Ill. 2d at 99-100, 281 N.E.2d at 291.) It held that where a defendant confesses or admits a charge that he violated his probation in reliance upon an unfulfilled promise by the State’s Attorney, such confession or admission of the charge is not voluntary. (Pier, 51 Ill. 2d at 100, 281 N.E.2d at 291.) The court further stated that “[¡Justice demands that [a defendant] be entitled to the protection of the same due-process requirements which pertain to pleas of guilty when he waives his right to a judicial determination of the charge that he violated his probation and confesses or admits the charges of the revocation petition.” Pier, 51 Ill. 2d at 99-100, 281 N.E.2d at 291.

Two years later, however, the Illinois Supreme Court, in People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745, clarified Pier. The court acknowledged that a probation revocation proceeding was comparable to the entry of a guilty plea, but only “insofar as consideration of the voluntariness of a defendant’s admissions made in both instances.” (Emphasis added.) (Beard, 59 Ill. 2d at 224, 319 N.E.2d at 747.) It explained that Pier “merely expressed the view that due process required that a defendant’s admission must be voluntarily made.” (Beard, 59 Ill. 2d at 225, 319 N.E.2d at 747.) Beard did not suggest that due process mandates that all the Rule 402 admonitions be given to a defendant in a probation revocation proceeding. To the contrary, the supreme court stated that an admission of a probation violation is significantly different in nature and effect from what is involved in a plea of guilty to the original charge (Beard, 59 Ill. 2d at 226, 319 N.E.2d at 748) and, therefore, found “that Rule 402 is not applicable to probation revocation proceedings.” Beard, 59 Ill. 2d at 226-27, 319 N.E.2d at 748.

Moreover, while a defendant is entitled to due process of law in proceedings to revoke probation (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756), there is a qualitative difference between a criminal proceeding and the revocation of probation (People v. Grayson (1974), 58 Ill. 2d 260, 264-65, 319 N.E.2d 43, 45). A probation revocation hearing is not a proceeding in which guilt or innocence is to be determined. “It takes place only after the defendant has already been convicted, sentenced to probation, and then has violated the conditions of the probation.” People v. Allegri (1985), 109 Ill. 2d 309, 313, 487 N.E.2d 606, 607.

Cases since Beard have determined the question of due process deprivations in probation revocation proceedings on a case-by-case basis, with little or no reference to Rule 402. Courts have determined that a defendant’s due process requirements in a probation revocation proceeding are: that the defendant have notice of the alleged violations (People v. Felton (1979), 69 Ill. App. 3d 684, 387 N.E.2d 1094), that revocation follows a hearing in which the defendant had an opportunity to be heard, (People v. Lee (1980), 88 Ill. App. 3d 396, 410 N.E.2d 646) and that the defendant was permitted to present evidence, confront witnesses, and be represented by counsel (People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211).

More recently, our supreme court has determined that due process requires a fair determination that the acts which formed the basis for the revocation petition did occur and that fairness be accorded a defendant during the proceedings. (Allegri, 109 Ill. 2d 309, 487 N.E.2d 606.) It has been reiterated by the courts, however, that a defendant at a probation revocation proceeding is not afforded the same protections afforded a defendant initially standing trial for the substantive offense. Allegri, 109 Ill. 2d at 313-14, 487 N.E.2d at 607; see also Gagnon, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756; People v. Hall (1985), 134 Ill. App. 3d 836, 480 N.E.2d 1387.

Defendant relies heavily upon People v. Followell (1987), 165 Ill. App. 3d 28, 518 N.E.2d 706, as analogous to the case here. Because the facts in Followell are diverse from the facts at bar, we find defendant’s argument to be unpersuasive.

The Followell court held that the defendant should have been admonished as to the specific allegations in the probation revocation petition, his right to a hearing with counsel present, his voluntariness in making the admission, and his understanding of the consequences of the admission, where he confessed to the contents of the probation revocation petition. (Followell, 165 Ill. App. 3d 28, 518 N.E.2d 706.) In Followell, five years had passed since the revocation petition had been filed and the defendant uttered only three words at the hearing. He had been placed under supervision for drug treatment, and the reviewing court was uncertain whether the defendant had been coerced to “confess” to the contents of the petition, whether he was aware of the allegations against him or whether he understood the consequences of his admission.

Unlike the defendants in Followell and Pier, defendant’s stipulation here was not tantamount to a guilty plea. Defendant here merely stipulated to what his probation officer would testify and not to guilt. People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, also relied upon by defendant, does not dictate a different result. Smith involves a stipulated bench trial where defendant stipulated to the evidence and the outcome. Here, defendant only stipulated to the evidence which would be presented in the event the probation officer testified. There was no stipulation as to the outcome of the court’s determination. Moreover, we find that the circumstances surrounding each of the probation revocation proceedings demonstrated both that defendant understood the terms of his probation and the consequences of his failure to comply with those terms. Defendant had been before the same judge in an earlier probation revocation proceeding and had been placed, and remained, in custody following the filing of the first petition to revoke probation and the sentencing hearing on that charge.

In addition, during the first probation revocation hearing, defendant was admonished by the trial judge, told that this would be his last chance, and asked if he understood the consequences for failure to abide by the probation terms. Furthermore, similar to Beard, in the instant case, there has never been a challenge to the conviction for which defendant was granted probation, and the trial court, at the time the guilty plea was entered, properly admonished defendant of his rights. In conclusion, we find that defendant was afforded due process of law during the revocation proceedings.

Accordingly, for the reasons set forth above, we affirm the decision of the circuit court of Cook County.

Affirmed.

O’CONNOR, J., concurs.

JUSTICE MANNING,

dissenting:

I must respectfully dissent from the majority’s opinion in this case. I would reverse the trial court’s judgment and remand the cause with directions.

First, in response to the State’s argument that defendant has waived this issue on appeal, I agree with the majority that it is necessary to determine whether any due process deprivations have occurred which affect the substantial rights of the defendant and merit invocation of the plain error doctrine. In this regard, I likewise have reviewed the record. However, my examination of the record leads me to resolve that the defendant here was denied his constitutional right of due process of law to receive a fair hearing. I base this conclusion upon the minimum requirements of due process of law to be accorded a defendant in general, and in particular, our supreme court’s holding in People v. Pier (1972), 51 Ill. 2d 96, 281 N.E.2d 289, which determined that a defendant in a probation revocation proceeding is entitled to minimum due process protections. Further, I believe that the applicable statutory requirements, which were enacted to insure the rights of a defendant to a fair and meaningful revocation hearing (see Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6—4(b), (c)), were not adhered to in the present case. I, therefore, would invoke the plain error doctrine (see People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124) and reverse this cause for the reasons as more fully set forth below.

Much discussion centers on People v. Pier, a 1972 supreme court case which primarily involves the question whether the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 — 1 et seq.) is applicable to the review of probation revocation proceedings. The court there determined that the defendant should have been given the opportunity to raise questions of errors in the post-conviction hearing which allegedly occurred during his hearing to revoke probation.

The defendant had been convicted of burglary and placed on probation. He then was charged with a violation of probation. During the hearing on the charge, defendant admitted the violation and was sentenced to prison. In the post-conviction petition, defendant contended that his admission to the violation of probation was induced by an unfulfilled promise of the assistant State’s Attorney to recommend a different sentence than that imposed. The supreme court agreed with the defendant and concluded that “due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge.” Pier, 51 Ill. 2d at 100.

Two years later in People v. Beard (1974), 59 Ill. 2d 220, 319 N.E.2d 745, a consolidated appeal, our supreme court commented that People v. Pier did not consider the applicability of Supreme Court Rule 402 (107 Ill. 2d R. 402) upon probation revocation proceedings. As noted by the majority, the court there distinguished its factual matrix from People v. Pier and concluded that Rule 402 admonitions did not apply to probation revocation proceedings. Thus, the majority here agrees with the State’s argument that this court must deny defendant relief because of the People v. Beard decision. Although I disagree with this conclusion, my dissent today is in no way meant as a detraction from the ruling in People v. Beard. I am fully aware that Supreme Court Rule 402 admonishments concern the requirements a trial court must substantially comply within hearings on “pleas of guilty," while the instant matter concerns the requirements applicable in probation revocation hearings. (Emphasis added.)

My major point of contention commences with the supposition that all defendants are entitled to a minimum degree of due process of law in court proceedings and concludes with the belief that defendant here was denied that minimum degree of due process of law during his second probation revocation hearing.

Although People v. Beard concluded that both defendants Beard and Blake had been afforded due process of law during their respective probation revocation hearings, the court in citing to the supreme court decision in Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756, noted that “ ‘minimum requirements’ of due process” and “fairness” should be applied to probation revocation proceedings. (Beard, 59 Ill. 2d at 225.) In Gagnon v. Scarpelli, the court held that due process entitles a probationer to written notice of the alleged violation, to disclosure of the evidence against him, the opportunity to be heard in person and to present evidence, to confront and cross-examine witnesses, and, in some instances, to receive the assistance of counsel. Gagnon, 411 U.S. at 782, 786, 788, 36 L. Ed. 2d at 661-62, 664, 665, 93 S. Ct. at 1759-60, 1761-62, 1762-63.

Similarly, courts in Illinois have long recognized that the Constitution requires that due process be accorded a defendant during a probation revocation proceeding. (See Pier, 51 Ill. 2d at 96; People v. Coffman (1967), 83 Ill. App. 2d 272, 227 N.E.2d 108. See also People v. Baker (1982), 92 Ill. 2d 85, 440 N.E.2d 856; People v. Followell (1987), 165 Ill. App. 3d 28, 518 N.E.2d 706; People v. Houston (1986), 146 Ill. App. 3d 982, 497 N.E.2d 784; People v. Allegri (1984), 83 Ill. App. 3d 1041, 469 N.E.2d 1126, aff’d (1985), 109 Ill. 2d 309, 487 N.E.2d 606; People v. Lee (1980), 88 Ill. App. 3d 396, 410 N.E.2d 646; People v. Seymour (1977), 53 Ill. App. 3d 367, 369, 368 N.E.2d 1018; People v. Bell (1977), 50 Ill. App. 3d 82, 365 N.E.2d 203; People v. Lewis (1975), 28 Ill. App. 3d 777, 779-80, 329 N.E.2d 390; People v. Bryan (1972), 5 Ill. App. 3d 1006, 284 N.E.2d 706.) The principle of fairness forms the basis for these decisions. The underlying rationale is that due process of law mandates fairness to a defendant because the outcome of a revocation proceeding could potentially curtail the defendant’s liberty.

Moreover, section 5 — 6—4(b) and (c) of the Unified Code of Corrections, which govern violation, modification or revocation of probation, prescribe in pertinent part: (1) that the trial “court shall conduct a hearing of the alleged violation”; (2) that the “State has the burden of going forward with the evidence and proving the violation by the preponderance of the evidence”; and (3) that the “evidence shall be presented in open court” wherein the defendant has the “right of confrontation, cross-examination, and representation by counsel.” See Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 6—4(b), (c).

In the case at bar, the petition to revoke probation charged defendant with violating the terms of his home confinement. The defendant’s counsel was present during the scheduled hearing on June 25, 1987; however, in the defendant’s absence, a warrant was issued for his arrest and the matter was continued for hearing until August 31, 1987. On August 31, the State merely presented evidence before the court in the form of the stipulation of facts of the probation officer. The record reflects that there was no further mention of the charges against the defendant. Neither did the trial court advise him of the State’s burden to produce evidence and to prove the allegations of the violation by a preponderance of the evidence. Defense counsel made no averrments to the court as to whether or not he had advised the defendant. Nor did the trial court advise defendant of his right to a hearing on the charge, or his right to confrontation, cross-examination and counsel. The record further reveals that defendant presented no evidence on his own behalf. His counsel made no representations whatsoever, and unlike the first revocation proceeding before the same judge, the trial court was likewise silent.

I believe that under the factual circumstances of the instant case, where the trial court failed to admonish the defendant of his inherent constitutional and statutory rights in a probation revocation proceeding, when coupled with the stipulation of facts and lack of defense on behalf of the defendant, serious due process deprivations have occurred which affect the substantial rights of the defendant and amount to grave and reversible error. Hence, I believe that it is appropriate to invoke the plain error exception to the waiver rule (see generally Enoch, 122 Ill. 2d 176), and remand this cause in light thereof.

Further, under the facts here presented, I believe that minimum requirements of due process of law dictate that the defendant should have been advised of his rights in a probation revocation proceeding. I am uncertain whether defendant was aware of the allegations against him, whether he understood what constitutes a stipulation of fact or what the consequences would be under circumstances wherein the stipulation was admitted into court and he presented no evidence to explain or contradict the stipulation. I would conclude that there was no meaningful hearing within the context of section 5 — 6—4, notwithstanding the presence of counsel. The defendant did not testify in his own behalf. There were no witnesses or cross-examination. Once the stipulation of fact was admitted in evidence, there was no challenge by defendant to rebut or explain the purported probation violation. The record is silent as to any comment by the trial judge. Section 5— 6 — 4 prescribes the proper procedures to be followed, and I believe that the spirit of the provision was not adhered to in the instant case.

The State points to the fact that the defendant had been before the same judge in an earlier probation revocation proceeding at which time the judge admonished him of the consequences of his actions in the event he committed another probation violation. However, I believe this prior warning was insufficient to properly advise the defendant of his rights in the second probation revocation proceeding. I believe that under such circumstances, minimum requirements of due process of law require new and additional advice at each subsequent probation revocation proceeding. The State is required to file a new petition each time there is an allegation of a violation of probation. The defendant is required to present himself before the court to answer the charges against him in each instance a new petition is filed or face arrest. At the very least, the defendant should have been told by the trial court of the allegations against him, the consequences of the stipulation at the point in time he offered no defense and of his statutory rights in a probation revocation proceeding under the code.

Hence, I would find that fairness and substantial justice mandate that a defendant who may be giving up his rights to liberty must be affirmatively admonished at the time he proposes to give up those rights. (See Lewis, 28 Ill. App. 3d 777.) He must be told that he has a right to be heard in his defense, to cross-examine witnesses and to confront them. Having concluded that the defendant here was deprived of due process of law without any advice by the trial court prior to the court’s revocation of probation, I would reverse the ruling of the circuit court.

This dissent in no way is meant to change the status of the law applicable to trial court decisions involving revocation of probation rulings. The question of probation is a matter within the sound discretion of the trial judge {People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721), and ordinarily a reviewing court will not disturb the trial court’s order unless there is a finding of an abuse of that discretion (People v. White (1975), 33 Ill. App. 3d 523, 338 N.E.2d 81) and a finding that the order is against the manifest weight of the evidence. (People v. Houston (1987), 118 Ill. 2d 194, 199-200, 514 N.E.2d 989.) Thus, I pass no judgment on the trial court’s finding as to whether a violation of probation occurred which would authorize it to revoke the defendant’s probation. To the contrary, my dissent strictly addresses the issue of the constitutional safeguards and statutory protections to be accorded a defendant in a probation revocation proceeding.

Accordingly, for the reasons as set forth above, I would reverse the decision of the circuit court and remand for a new proceeding consistent with this opinion.

       The record is silent regarding the circumstances of the in-chambers conference.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE ORTIZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3187
    Opinion filed March 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Gael M. O’Brien, Special Assistant State’s Attorney, and Inge Fryklund and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

After a stipulated bench trial, defendant, Jose Ortiz, was convicted of possession of a controlled substance (Ill. Rev. Stat. 1987, ch. BGfz, par. 1402) and sentenced to three years in prison. On appeal, he contends (1) the trial court erred in denying his motion to quash his arrest and suppress a plastic bag containing white powder seized during his arrest and (2) the State failed to prove beyond a reasonable doubt that the substance contained in the bag was cocaine. We affirm.

Prior to trial, the court conducted a hearing on defendant’s motion to quash his arrest and suppress evidence. At the hearing, defendant testified that while walking in the 1300 block of North Rockwell, Chicago, at about 12:15 a.m. on June 9, 1987, he was approached by a plainclothes police officer. The officer began searching him and told him to open his hands. When he asked the officer why he should do that, the officer began hitting him. He then attempted to flee, but, before he could get very far away, the officer and a second police officer caught up with him. The officers struggled with him for awhile and then placed him under arrest.

Defendant further testified that after the arrest he reported the police officers’ conduct to the Office of Professional Standards. He admitted telling representatives of that office that he was carrying a bag of cocaine when the incident occurred. He was holding the bag, which was about the size of his palm, completely within his clenched fist. He denied that the bag contained 17 smaller bags and stated that he only gave the bag to the officers after the struggle.

Officer David Figlioli, a gang crimes specialist, also testified at the hearing. He stated that while riding in an unmarked police car driven by his partner, Officer Wyora, at about 12:15 a.m. on June 9, he saw defendant, whom he knew from past dealings “in his professional capacity,” walking in the 1300 block of North Rockwell. Streetlights were on at the time. When Figlioli was about 15 feet away from defendant, he could see from his unobstructed vantage point in the passenger seat of the car that defendant was holding a plastic bag, about 2V2 inches to 3 inches in diameter, in his left hand. He saw a white powdery substance, which he believed to be cocaine, in a portion of the bag sticking out of defendant’s hand. After seeing this, he called out to defendant by his nickname and told him to stop. After defendant stopped, Figlioli and Wyora approached defendant who, for some reason, placed his thumbs in his ears and held up his hands. Defendant then suddenly struck Wyora and attempted to flee. After a short chase, they caught defendant and tried to detain him, but he began striking and kicking them. They then wrestled on the ground with him for about 10 minutes before being able to subdue him. After the struggle, Figlioli took the bag that defendant had been holding and saw that it contained 17 smaller bags with a white powdery substance. At the conclusion of Figlioli’s testimony, the trial court denied the motion, noting that it found Figlioli’s testimony to be more credible than defendant’s testimony.

The parties stipulated to the use of the motion hearing testimony at trial. Also, when the court inquired whether there was a stipulation on the chemist’s report, the State responded:

“Also stipulate to the report prepared by Marsha Ross on June 11th, 1987, that she tested the substance which was one clear bag containing 17 clear plastic, clear plastic each containing white powder tested out at 13.6 grams of controlled substance, cocaine.”

The court then found defendant guilty of possession of a controlled substance.

Defendant first contends that the trial court should have granted his motion to quash his arrest and suppress the plastic bag because there were no specific or articulable facts which reasonably warranted the police stopping him. He argues that Officer Figlioli’s testimony that he saw him carrying a plastic bag with a white powdery substance was incredible, considering that Figlioli was about 15 feet away when he made his observation, it was dark outside and the bag measured only 2V2 inches to 3 inches in diameter. On balance, we find no merit to this issue.

In order to justify the intrusion which results when police stop a private citizen in the public way, the police must be able to point to specific and articulable facts which, when considered with reasonable inferences, warrant the intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880; People v. Vena (1984), 122 Ill. App. 3d 154, 160, 460 N.E.2d 886, 891.) The police must have been acting on more than just a hunch when stopping the citizen. (People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122.) In considering credibility issues, a reviewing court must view all evidence in a light that is most favorable to the prosecution. (People v. Pryor (1988), 170 Ill. App. 3d 262, 268, 524 N.E.2d 700, 704.) A reviewing court should not disturb a trial court’s finding on a motion to suppress unless it is manifestly erroneous. People v. Clark (1989), 185 Ill. App. 3d 231, 235, 541 N.E.2d 199, 202.

In the present case, we cannot say that the trial court’s denial of the motion was manifestly erroneous. There were specific and articulable facts to support stopping defendant. Here, Officer Figlioli testified that he saw defendant, whom he knew from previous professional dealings, walking down the 1300 block of North Rockwell in the early morning hours of June 9, 1987, with a plastic bag containing a white powdery substance, believed to be cocaine, in his left hand. He made these observations from the unobstructed vantage point of the passenger seat of a car, approximately 15 feet from defendant, with the benefit of illumination from streetlights. On balance, these circumstances and the reasonable inferences to be drawn from them can be deemed to have created a rational, articulable suspicion warranting defendant’s stop. See People v. Clark (1989), 185 Ill. App. 3d 231, 239, 541 N.E.2d 199, 204.

Defendant argues that Officer Figlioli should not be believed because of the improbability that he could see a 2V2-inch to 3-inch bag of white powder from an automobile, a distance of about 15 feet away, at about 12:15 in the morning. A reviewing court will not reverse a conviction based on the trier of fact’s determination of a credibility issue unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320.) The trial court expressly found Figlioli’s testimony to be more believable than defendant’s testimony. We do not believe that the evidence is so improbable as to raise a reasonable doubt of guilt. Figlioli did testify that he was a passenger in the police car and had an unobstructed view of defendant. He also testified that Rockwell was illuminated by streetlights. Considering these factors, as well as the relatively small distance between him and defendant, there is an insufficient basis for disturbing the trial court’s finding on the issue of credibility.

The fact that Officer Figlioli saw a person with whom he had previous professional dealings walking down a street in the early morning hours with a bag containing a white powdery .substance was sufficient to justify the stop. Under the circumstances, it was not unreasonable for a police officer in the gang crimes unit to infer that the white powdery substance was an illicit drug and to stop defendant for further investigation. Once the stop occurred, the series of events which followed, including the assault, the attempted flight and the relatively lengthy struggle, justified the subsequent arrest and seizure of the plastic bag.

A somewhat similar factual situation was present in People v. Clark (1989), 185 Ill. App. 3d 231, 541 N.E.2d 199. There, the court found that a stop was proper under circumstances where a veteran police officer observed, at a distance of approximately 10 feet, occupants of a car smoking, inhaling and passing a hand-rolled cigarette which he concluded was marijuana. Though there is no evidence in the present case that the defendant was in fact using the white powdery substance, evidence that a gang crimes specialist, with prior professional dealings with defendant, saw defendant walking in the early morning hours with a plastic bag containing a white powdery substance believed to be cocaine is sufficiently similar to the evidence in Clark so as to warrant a similar conclusion that the stop was proper.

People v. Steckhan (1983), 116 Ill. App. 3d 173, 452 N.E.2d 122, cited by defendant, is distinguishable on the basis that the stop which occurred in that case was based upon a hunch and not articulable facts. In Steckkan, defendant was stopped for a drug search at an airport because he was arriving on a plane from an area which was a known drug source, was the last passenger to deboard the plane, was young, walked slowly, and looked over his shoulder. Aside from these relatively common and innocent circumstances, the officers who made the stop could point to nothing to justify the stop for the purposes of the drug search. The present case is different because Officer Figlioli, a gang crimes specialist with prior professional dealings with defendant, could point to the suspicious circumstance that defendant was carrying a small plastic bag containing a white powdery substance, which he believed to be cocaine. This circumstance, occurring as it did in the early morning hours, made the basis for the stop more than a mere hunch and was sufficient to condone the stop.

Defendant next contends that the State failed to prove beyond a reasonable doubt that the substance in the plastic bag was cocaine and thus failed to prove a key element of the possession of a controlled substance charge. He argues that the stipulation regarding Marsha Ross’ report was insufficient proof that the substance was cocaine because it did not identify Ross as a qualified expert and did not identify the tests she performed to conclude that the substance was cocaine. He further argues that without expert testimony that the substance was cocaine, the State could not establish the key element of the identity of the controlled substance. We disagree.

In order to obtain a conviction for possession of a controlled substance, the State must prove beyond a reasonable doubt that the substance in question is in fact a controlled substance. (See People v. Harrison (1962), 26 Ill. 2d 377, 379, 186 N.E.2d 657, 658.) Proof of identity of a substance may be established by expert testimony. (People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795.) Absent expert testimony, proof of identity may be established through other evidence, including circumstantial evidence. See People v. Robinson (1958), 14 Ill. 2d 325, 330-31, 153 N.E.2d 65, 68.

In the present case, there was no expert testimony that the white powdery substance was cocaine. There was the stipulation regarding Marsha Ross’ report but that stipulation did not expressly state that Ross was an expert qualified to render a chemical analysis of the substance in question. We cannot infer from the trial court’s casual reference to a “chemist’s report” that the parties intended to stipulate that Marsha Ross was in fact a qualified chemist. The court’s remark can be construed to communicate no more than a casual identification of the document. It cannot be construed as a direeled inquiry as to whether there would be a stipulation concerning the qualifications of its preparer. See People v. Harrison (1962), 26 Ill. 2d 377, 379, 186 N.E.2d 657, 658.

The fact that the parties may have stipulated to the admissibility of that report does not of itself control the weight which can be attributed to it. (1 Wigmore, Evidence, §12 (Tillers rev. ed. 1983).) If there is no evidence presented to establish Ross’ qualifications or a stipulation that she possessed the threshold qualifications to render her analysis admissible as an expert’s report, the report should not be given the weight of an expert’s report.

However, even without expert testimony, there was sufficient other evidence to establish that the substance was cocaine. Significantly, when defendant reported the police officers’ alleged misconduct to the representatives of the Office of Professional Standards, he voluntarily admitted that he was carrying cocaine in the bag. Although an admission by itself is insufficient to establish that the substance was cocaine, an admission together with corroborating circumstances may be sufficient. (People v. Jones (1979), 75 Ill. App. 3d 214, 221-22, 393 N.E.2d 1132, 1138.) Corroborating circumstances which have been found to be sufficient include those which suggest that the defendant’s admission was based upon his actual knowledge that a substance was a drug. (See People v. Park (1978), 72 Ill. 2d 203, 212-13, 380 N.E.2d 795, 800.) In the present case, there were sufficient corroborating circumstances. There was the manner in which defendant clasped the bag with the substance, his stubborn refusal to open his hands when ordered to do so, his sudden attack on the police officer, his attempted flight from the police officers and his determined refusal to turn the bag over to the police until after the 10-minute struggle. These circumstances tend to suggest that defendant knew he was holding an illicit substance which he did not want to turn over to law enforcement officers. Additionally, there was Officer Figlioli’s identification of the substance as a white powder, a circumstance which other courts have considered together with other circumstances in determining whether a substance is a drug. (United States v. Lawson (7th Cir. 1974), 507 F.2d 433, 438-39; United States v. Agueci (2d Cir. 1962), 310 F.2d 817, 828-29.) Together, defendant’s voluntary admission and the corroborating circumstances were sufficient to prove his guilt beyond a reasonable doubt. See People v. Harrison (1962), 26 Ill. 2d 377, 186 N.E.2d 657.

At oral argument, defendant for the first time argued that his motion hearing testimony that he admitted carrying cocaine was inadmissible evidence at trial and cannot be considered in proving his guilt. As a general rule, a defendant’s testimony at a motion to suppress hearing may not be subsequently admitted at trial on the issue of guilt. (People v. Gross (1988), 166 Ill. App. 3d 413, 418, 519 N.E.2d 1043, 1048.) Nonetheless, defendant overlooks one very significant fact in making his argument: he stipulated, without reservation, to the use of his motion hearing testimony at trial. Having done so, he cannot now complain of the evidence he has stipulated to. (People v. Hawkins (1963), 27 Ill. 2d 339, 341, 189 N.E.2d 252, 253.) If he was concerned about its inadmissibility, he should not have agreed to its use at trial. (People v. Sclafani (1988), 166 Ill. App. 3d 605, 610-11, 520 N.E.2d 409, 412-13.) Additionally, he has waived this argument by not raising it in his brief. 107 Ill. 2d R. 341(e)(7).

The cases cited by defendant, People v. Park (1978), 72 Ill. 2d 203, 380 N.E.2d 795, People v. Judkins (1963), 28 Ill. 2d 417, 192 N.E.2d 848, and People v. Williams (1962), 25 Ill. 2d 562, 185 N.E.2d 686, are distinguishable on the basis that the proofs in each of these cases were not sufficient to establish the substance as a narcotic drug. In Park, although there was an admission by defendant, the admission was made under the pressure of a police investigation of the crime and there were insufficient corroborating circumstances. In Judkins, there was no admission and nothing other than a field test to establish the identity of the drug. In Williams, there was no proof that the substance taken from defendant was heroin. In the present case, the voluntary admission and corroborating circumstances offer more substantial proof than in any of these cases.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

LORENZ and MURRAY, JJ., concur.