author: PRESIDING JUSTICE GREEN

text:
    DONALD E. HEYEN, Plaintiff-Appellant, v. SANBORN MANUFACTURING COMPANY et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0477
    Opinion filed December 13, 1991.

      Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris and Thomas M. Harris, of counsel), for appellant.

      Sorting, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, and Fredrikson & Byron, of Minneapolis, Minnesota (Stephen R. Kaufmann and Jerome B. Pederson, of counsel), for appellee Sanborn Manufacturing Company.
    Quinn, Johnston, Henderson & Pretorius, of Peoria (Murvel Pretorius, Jr., and David B. Collins, of counsel), for appellee R & H Farm and Home, Inc.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 7, 1990, plaintiff Donald E. Heyen filed a complaint in the circuit court of Logan County against defendants Sanborn Manufacturing Company (Sanborn) and R&H Farm and Home, Inc. (R&H). Plaintiff alleged he was injured when an air compressor manufactured by Sanborn and sold by R & H exploded. On March 11, 1991, the trial court granted defendants’ motions to dismiss an amended complaint. Plaintiff appeals. We affirm in part, reverse in part, and remand for further proceedings.

Plaintiff’s original three-count complaint alleged (1) plaintiff purchased a new air compressor from R & H on May 4, 1978; (2) the air compressor had been manufactured and distributed by Sanborn; and (3) on May 7, 1988, plaintiff was injured when the compressor exploded. Count I of the original complaint charged Sanborn with strict liability in tort and alleged the compressor was unreasonably dangerous at the time it left Sanborn’s control in that it had a defective pressure relief valve that allowed excessive pressure to build up in the tank, causing it to explode. Count II alleged Sanborn “was negligent in its manufacture of the aforementioned air compressor in that it contained a defective pressure relief valve that allowed excessive pressure to build up in the tank causing the described explosion and injuries.” Count III alleged the air compressor was unreasonably dangerous at the time R&H sold it to plaintiff.

Sanborn filed a motion requesting dismissal of count I of the original complaint contending that, as it sounded in strict liability, it was barred by the 10-year repose provision as to strict liability claims set forth in section 13 — 213(b) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 213(b)) because the air compressor had been both placed in commerce and sold more than 10 years prior to the filing of plaintiff’s complaint, and the injuries to plaintiff had occurred a few days more than 10 years after the sale by R & H to plaintiff. That motion also requested that count II of that complaint be dismissed for failure to set forth sufficient facts to support a negligence claim. The original complaint was admittedly filed within the time limit for bringing negligence actions for personal injury set forth in section 13 — 202 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13— 202). R & H subsequently filed a motion for summary judgment as to count III of the original complaint asserting that count was also barred by expiration of the 10-year period of section 13 — 213 of the Code. On October 1, 1990, the court granted R & H’s motion for summary judgment without objection as to count III and granted plaintiff leave to file an amended count against R & H within 21 days.

Plaintiff filed an amended complaint in two counts on October 23, 1990. Count I of the amended complaint was directed against Sanborn and alleged it was negligent in the manufacture of the air compressor because it:

“(a) Failed to incorporate in its design, an effective pressure relief valve to prevent excessive pressures from building up in the air chamber;
(b) Had a defective pressure relief valve that failed to operate as designed and thereby allowed excessive air pressure to build up in the air chamber; and
(c) Failed to warn users of the dangers stated in subparagraphs (a) and (b).”

Count II alleged R & H was negligent in that it:

“(a) Failed to adequately inform purchasers of the dangerous condition described in paragraph three[,] even though it knew or should have known of those dangers before May 7, 1988; and
(b) After being notified by the manufacturer of a recall because of the dangerous condition[,] failed to give purchasers adequate notice of the recall.”

On November 1, 1990, Sanborn filed a motion to strike the amended complaint because of plaintiff’s failure to obtain leave of court to file it. The court subsequently granted plaintiff leave to file count I of its amended complaint against Sanborn and granted San-born’s motion to dismiss count I (strict liability) of plaintiff’s original complaint. R & H filed a motion to dismiss count II of the amended complaint on the basis that the causes of action alleged in that count failed to relate back to the filing of the original complaint, pursuant to section 2 — 616(b) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 616(b)).

After R & H filed its motion to dismiss count II of the amended complaint, Sanborn filed a motion to dismiss both count I of the amended complaint and count II of the original complaint. This motion was supported by an attached brief which set forth the grounds upon which Sanborn was relying. Sanborn’s theory as to why the motion should have been allowed begins with its assertion that the original count II, although alleging negligence by Sanborn, nevertheless sounded in strict liability and was thus barred by the repose provisions of section 13 — 213 of the Code. Sanborn then maintained, in the alternative, original count II should have been dismissed for failure to allege more details as to the negligence with which it was charged. Sanborn then contended that count I of the amended complaint should also be dismissed (1) for failure to set forth the negligence with which it was charged in sufficient detail, and (2) because, under section 2— 616(b) of the Code, that count could not defeat the two-year limitation for bringing negligence actions set forth in section 13 — 202 of the Code.

After a hearing, the circuit court entered an order on March 11, 1991, dismissing count II of the amended complaint, which was against R & H, with leave to reinstate within 28 days. By the same order, the court dismissed the amended complaint against Sanborn with prejudice. On May 30, 1991, the court noted that plaintiff had elected to stand on its complaint against R & H. Accordingly, the court then entered an order dismissing the amended complaint with prejudice. The circuit court did not rule on plaintiff’s motion to dismiss count II of the original complaint. However, as plaintiff had filed an amended complaint rather than an amendment to the original complaint, the amended complaint superseded the original. The circuit court ruled on all pending motions. Plaintiff has properly appealed from the final judgment of May 30,1991.

Plaintiff maintains both count I and count II sound in negligence for which the two-year statute of limitations of section 13 — 202 of the Code is applicable. Under the circumstances alleged here, that limitations period starts to run on the day the injury occurs. Here the injury was alleged to have occurred on May 7, 1988, and the original complaint was filed on May 7, 1990, which was barely within that two-year period. The amended complaint was not filed until October 23, 1990, which was well after the expiration of that period. However, plaintiff maintains that section 2 — 616(b) of the Code permits the amended complaint to relate back to the filing of the original complaint for determination of whether the limitations period had expired. Section 2 — 616(b) states:

“The cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading ***.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616(b).

In Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64, a wrongful death action (Ill. Rev. Stat. 1965, ch. 70, par. 1) was held to relate back to a complaint previously brought under the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, par. 60 et seq.) by a widow of the decedent, who was also his administrator, because of the provisions of the then section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46(2)), which contained the same pertinent language as the present section 2 — 616(b) of the Code. The supreme court explained its rationale in these words:

“The aforementioned provisions were designed to insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleading. *** [T]he policy attendant to statutes of limitation is to provide defendant a sufficient opportunity to investigate the factors upon which his liability may be based while such evidence is still ascertainable. [Citation.] In the present case it is readily apparent that the cause of action set forth in the second amended complaint ‘grew out of the same transaction or occurrence set up in the original pleading,’ which was timely filed. Moreover, in all the pleadings the basis of defendants’ liability was the alleged defective nature of the work area utilized by deceased prior to his fall. Thus defendants were informed of circumstances upon which they might predicate a defense.” Halberstadt, 55 Ill. 2d at 124-25, 302 N.E.2d at 66.

In Cunningham v. Hasbargen (1983), 118 Ill. App. 3d 1019, 455 N.E.2d 1019, this court held that counts charging a tavern operator with negligence and wilful and wanton conduct in not protecting a plaintiff from an intoxicated patron of that tavern could relate back to the filing of a count charging that same defendant under certain provisions of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135). At that time, section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(2)) was also in force. A different result was reached by this court in Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 475 N.E.2d 260. There, the court held that an amended complaint charging a physician and a medical center with a negligent course of treatment of a patient over several years beginning in 1974 would not relate back under section 2 — 616(b) of the Code to a timely count charging negligence in the course of that treatment in 1977 as to one surgical procedure performed at that time.

Similar to Chestnut, in Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 511 N.E.2d 901, the Second District Appellate Court held that a count charging a wrongful discharge of an employee by an employer could not relate back, pursuant to section 2 — 616(b) of the Code, to a count charging the employer with defamation of that employee at apparently the same time as the discharge. In both Chestnut and Perkins, the appellate court referred to a requirement that the pleading to which a relation back is sought must call the defendant’s attention to the facts which form the basis of the newly pleaded claim so that the defendant may make appropriate investigation in a timely manner. See also Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481.

The foregoing precedent indicates the charges in the amended complaint against R & H cannot relate back to the original complaint and become timely. Count II of the amended complaint charged R & H with negligence in (1) failing “to adequately inform plaintiff of the dangerous condition” of the air compressor when R & H knew or should have known of the danger, and (2) after being given notice by the manufacturer of a recall, failing to give plaintiff notice of this. Plaintiff seeks to relate these allegations back to count III of the original complaint, which alleged the air compressor was unreasonably dangerous when sold. Clearly, the original allegations of the defective nature of the compressor do not sufficiently alert R & H of a possible contention that it failed to inform plaintiff of a subsequent recall by the manufacturer and make timely investigation in that respect.

The allegations of the defective nature of the compressor come closer to alerting R & H that it could be charged with knowledge of the dangerous condition of the compressor and failing to warn plaintiff of this. However, the focus of the defective product charge was on the actual condition of the product. The focus of the amended charge includes the issue of whether R & H knew or should have known of the defect. To investigate this question, R & H would have had to timely check with its employees to see what they knew and what circumstances existed which might have required them to know of the defect. The circuit court properly dismissed count II of the amended complaint with prejudice.

Count I of the amended complaint alleged Sanborn was negligent because (1) it “[flailed to incorporate in its design, an effective pressure relief valve to prevent excessive pressure from building up in the air chamber,” (2) the compressor had a defective pressure relief valve that failed to operate as designed, and (3) it failed to warn users of the foregoing dangers. Plaintiff maintains these charges can relate back to those in counts I and II of his original complaint. Count I of that complaint charged Sanborn with strict liability in tort because the defective relief valve, present when it left Sanborn’s control, allowed excessive pressure to build up and caused it to explode. Count II of the plaintiff’s original complaint alleged Sanborn “was negligent in its manufacture of the *** air compressor in that it contained a defective pressure relief valve that allowed excessive pressure to build up in the tank causing the described explosion and injuries.”

As was the situation in regard to the allegation that R & H failed to warn plaintiff of a recall, we conclude that allegations in count I of the amended complaint of Sanborn’s negligent failure to warn plaintiff of the dangerous nature of the allegedly defective relief valve cannot relate back to counts I and II of the original complaint, which alleged the relief valve was in an unreasonably dangerous condition at the time of sale and was negligently so designed.

We need not decide whether the other charges of count I of the amended complaint can relate back to count I of the original complaint, which charged defective product. Count II of the original complaint charged Sanborn with the negligent manufacture of the air compressor because of a defective relief valve. The other charges of count I of the amended complaint alleged a negligent failure to incorporate a proper relief valve in the design of the air compressor and the negligent manufacture of an air compressor that contained a defective valve that failed to operate as designed. The close relationship between count I of the original complaint and those provisions of count II of the amended complaint are such that the former gave San-born the information necessary to prepare to defend against the later charge. Clearly the allegations all involved the same transaction.

Next, we confront two of Sanborn’s contentions upon which it places great reliance. One is that despite the use of the word “negligence” in count II of the original complaint, it actually set forth a cause of action in strict liability for defective product. Sanborn maintains that if the foregoing were so, count I of the amended complaint cannot relate back to it.

We need not decide whether, if original count II sounded in defective product, count I of the amended complaint can relate back to it. We hold that original count II did not sound in strict liability for defective product. Sanborn’s theory is based on the fact that original count II used such words as “defective,” which is a part of the description of a cause of action in strict liability. Sanborn at least hints of a public policy whereby all suits for a defective product are intended to be subject to the repose provisions of section 13 — 213 of the Code.

The latter theory is refuted by the decision of the Fifth District Appellate Court in Dintelman v. Alliance Machine Co. (1983), 117 Ill. App. 3d 344, 453 N.E.2d 128, wherein the court reversed the portion of a judgment which dismissed as barred by the repose provisions of section 13 — 213 of the Code products liability counts which were based upon negligence rather than strict liability. That court pointed out that (1) an important aspect of strict liability is that proof of negligence is unnecessary, and (2) public policy in regard to exposure of manufacturers to such suits is different than when the plaintiff has the burden of proving negligence on the part of the defendant. (See Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522.) Despite the use of such words as “defective” in count II of the original complaint, the use of the word “negligent,” requiring the plaintiff to prove that element, fully distinguished that negligence count for products liability from one where the liability is strict and no negligence need be proved.

We recognize the imperfection in both count II of the original complaint and count I of the amended complaint for failing to set forth what that negligence was. (See Costello v. Unarco Industries, Inc. (1984), 129 Ill. App. 3d 736, 473 N.E.2d 96.) However, in Metropolitan Trust Co. v. Bowman Dairy Co. (1938), 369 Ill. 222, 15 N.E.2d 838, the supreme court stated that in order for an amended count of a complaint to relate back, under section 46 of the then Civil Practice Act of 1933 (Ill. Rev. Stat. 1937, ch. 110, par. 170), “it is not necessary that the original pleading technically state a cause of action.” (Emphasis added.) (Metropolitan Trust Co., 369 Ill. at 229, 15 N.E.2d at 842.) In Savant v. Superior Coal Co. (1955), 5 Ill. App. 2d 109, 125 N.E.2d 148, the appellate court held that an amended charge against a coal mining corporation for creating subsidence of surface owners’ land was held sufficient for relation back by an amended count even though the original count was defective for failure to state when the subsidence occurred. Metropolitan Trust Co. was cited. The case was decided by the then Third District Appellate Court which was the predecessor to this court.

Neither the use of phrases such as “defective” in the original count II nor the failure of that count to specify the nature of the negligence to which Sanborn was charged prevents portions of count I of the amended complaint from relating back to original count II. Similarly, any defect in count I of the amended complaint for failure to allege negligence in more detail does not support the judgment of dismissal of that count. It was dismissed on the basis that the count was time barred. On remand, plaintiff should have an opportunity to amend to supply that deficiency.

Accordingly, we affirm the judgment of the circuit court in dismissing, with prejudice, count II of the amended complaint and in striking the part of count I of the amended complaint seeking recovery for Sanborn’s alleged failure to warn users of the air compressor. We reverse the dismissal of the balance of count I of the amended complaint. We remand to the circuit court of Logan County for further proceedings.

Affirmed in part; reversed in part and remanded.

STEIGMANN and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN McCREADIE, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0155
    Opinion filed December 13, 1991.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Ben McCreadie and his codefendants Laura Bowers and William Nimitz, Jr., were charged with first degree murder, pursuant to section 9 — 1(a)(1) of the Criminal Code of 1961 (Criminal Code) (111. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), in the murder of Bowers’ husband, David Bowers. Defendant pleaded guilty and was sentenced to life imprisonment. He now appeals, claiming the natural-life sentencing statute is unconstitutionally vague in that it violates the eighth amendment prohibition against cruel and unusual punishment. After hearing all the evidence in aggravation and mitigation, the trial court ruled that defendant was eligible for the death penalty. The court found, however, sufficient mitigating factors which precluded the imposition of the death penalty. The court found that because the murder was “heinous, cruel, meditation [sic], planned, without mercy, and so forth,” the defendant should receive a natural-life sentence.

Defendant argues that section 5 — 8—1(a)(1) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)) is unconstitutionally vague under the eighth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VIII, XIV). We disagree.

In Groyned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294, the Supreme Court emphasized the important considerations in determining whether legislation proscribing conduct is void for being vague and indefinite as being whether (1) it gives reasonable guidance to the average person; (2) it is designed in such a way as to avoid arbitrary and discriminatory enforcement; and (3) whether sensitive first amendment rights are involved, thus requiring a higher standard of review. In the instant case, it is clear that no first amendment rights are involved. We need only consider whether the statute gives reasonable guidance to the average person and avoids arbitrary and discriminatory enforcement.

The natural-life sentence provision, section 5 — 8—1(a)(1) of the Corrections Code, provides:

“[F]or first degree murder, (a) a term shall be not less than 20 years and not more than 60 years, or (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant has previously been convicted of first degree murder under any state or federal law or is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-l(a)(l).

The sentencing court found defendant eligible for the natural-life sentence because “the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1)(b).) Section 5 — 8—1(a)(1)(b) of the Corrections Code allows a court to impose a natural-life sentence if one of the aggravating factors in section 9 — 1(b) of the Criminal Code is present. (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b).) The trial court also found, pursuant to section 9 — l(b)(10) of the Criminal Code, that the murder was committed in a cold, calculated, and premeditated manner. Ill. Rev. Stat. 1989, ch. 38, par. 9 — l(b)(10).

In People v. Nobles (1980), 83 Ill. App. 3d 711, 404 N.E.2d 330, this court found the statute which allows a natural-life sentence con-

stitutional. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1).) The statute in existence at the time of Nobles also contained the following phrase:

“[I]f the court finds that the murder was accompanied by ex-brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9 — 1 of the Criminal Code of 1961 are present, the court may sentence the defendant to a term of natural life imprisonment.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8— 1(a)(1).)

Nobles held the statute was not unconstitutionally vague and stated:

“The totality of the words used together requiring either the ‘brutal’ or the ‘heinous’ behavior to indicate ‘wanton cruelty’ gives reasonable guidance to the average person and is of a design which would tend to avoid arbitrary enforcement.” Nobles, 83 Ill. App. 3d at 716, 404 N.E.2d at 335.

Another sentencing statute with similar provisions has been upheld by our supreme court. In People v. Odie (1988), 128 Ill. 2d 111, 538 N.E.2d 428, cert. denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3289, the court held that section 9 — 1(b)(7) of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(b)(7)), which allows the death penalty if “the murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty,” was not unconstitutionally vague. Defendant contends the “under 12 years” phrase saved that statute from being unconstitutionally vague. The People respond that it is illogical to believe the age restriction would render it constitutional, if the rest of the language was unconstitutionally vague. We agree with the People.

Odie held that the Illinois statutory language was much more specific in describing the conduct which qualified an accused for the death penalty than the Oklahoma statute considered in Maynard v. Cartwright (1988), 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853. In Maynard, relied on by defendant, the Supreme Court remanded the case for resentencing, holding that the death-sentence statute was vague and overbroad; namely, that defendant was convicted of committing a murder that was “especially heinous, atrocious, or cruel.” (Maynard, 486 U.S. at 364, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) As the court said in Odie, to impose the death penalty in Illinois, the murder must have resulted from exceptionally brutal or heinous behavior, and this behavior must be indicative of wanton cruelty. Exceptionally brutal or heinous conduct, coupled with the indication of wilful and wanton cruelty, are specific enough to find the statute constitutional. Odle, 128 Ill. 2d at 140-41, 538 N.E.2d at 440.

Likewise, in the instant case, the language is specific enough to give reasonable guidance to the sentencing court and avoid arbitrary and discriminatory enforcement. As in Nobles, we again find the statute involved is constitutional.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHASTITY L. DEASON, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0291
    Opinion filed December 13, 1991.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

A jury convicted defendant, Chastity L. Deason, of attempt (murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1), home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11), and armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2), and she was sentenced to three concurrent terms of 18 years in prison. Defendant appeals, arguing (1) she was improperly convicted of attempt (murder) because (a) at the time of the alleged offense, the offense of murder no longer existed, having been replaced with first degree murder, and (b) the jury was not properly instructed that the specific intent to kill the victim was a necessary element of attempt (murder); (2) the trial court denied her a fair trial by erroneously excluding certain statements made by her codefendant; and (3) the trial court considered improper factors when it determined the sentences to impose upon her. We affirm in part, reverse in part, and remand with directions.

I. Facts

Because defendant does not challenge the sufficiency of the evidence to sustain her convictions, we will review the evidence only to the extent necessary to place her arguments on appeal in context.

On the evening of April 10, 1990, Mitchell Page, Jennifer Little, and defendant were present at Christina Hammock’s home in Gibson City, Illinois. Defendant and Page asked to borrow Hammock’s car “to go to talk to someone.” Hammock agreed, and defendant and Page drove off in Hammock’s car. Little, who was Page’s pregnant girlfriend, remained at Hammock’s house. Defendant and Page had previously discussed getting some money to help Little.

Defendant and Page drove to Lawrence Gordon’s house. Page got out of the car and told defendant to pull the car into the driveway. She did so and then accompanied him to the back door of Gordon’s residence, which was unlocked. Page entered first, carrying a baseball bat, and defendant followed him into the residence. Page told her to shine the flashlight, which she had brought into the residence, so that he could see. Page walked into the bedroom, while defendant stayed in the hallway between the bedroom and the kitchen. Defendant heard Gordon snoring in the bedroom, but she never went inside. She then heard something being hit with the baseball bat, and later described it as sounding “like someone hitting a large bag of fluid.” Defendant looked into the bedroom and saw that Gordon’s forehead was bloody. Page told her to find Gordon’s pants, but she remained standing in the hallway. Page then found Gordon’s pants, removed Gordon’s checkbook and wallet, and said, “Let’s go.” Page pulled defendant out the back door, and they drove back to Hammock’s house. In the car, Page discovered that Gordon’s wallet contained $22. On the way back, they stopped at Page’s mother’s house, where Page left a note.

Upon their return to Hammock’s house, defendant and Page asked Hammock to drive them to Danville, and she agreed. Hammock, Little, defendant, and Page then drove to Danville, where they spent the night. At Page’s direction, Hammock drove to Danville on the back roads.

The next morning Hammock drove the group back to Champaign. En route, Page informed Hammock that the night before he went to the house of an old man where he thought there would be $20,000 in the basement. Page said that because the old man had a shotgun, Page hit him in the head with a baseball bat, and Page now thought that the man was dead. While still en route to Champaign, defendant told Hammock that Page had ordered her out of the car and into the house when they arrived at the old man’s residence.

After driving to Champaign, Page asked to borrow the car from Hammock, and she agreed. Page, Little, and defendant then drove off in Hammock’s car and never returned it. The three of them drove around Champaign to various banks trying to cash a check from Gordon’s checkbook. According to defendant, Page was ordering her to try to cash a check because only she had any identification. However, no Champaign bank would cash the check. Later, they drove to Farmer City, where defendant claimed Page threatened her if she would not again try to cash a check. This time she succeeded and cashed a check for $583.75. Defendant maintained she did so because she was afraid of Page. After cashing the check, defendant, Page, and Little drove south and were ultimately arrested in Mississippi a few days later.

As a result of being beaten by Page with the baseball bat, Gordon suffered extensive injuries to his brain, skull, eyes, cheekbones, nose, and jaw. His left optic nerve was severed. His medical treatment required his jaw to be wired shut and metal plates to be implanted in his head. His face received multiple sutures. He also lost a great deal of blood and needed to spend two weeks in the hospital and two more weeks at a rehabilitation center.

Defendant asserted the defense of compulsion (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 11), and the trial court instructed the jury accordingly. The State’s theory of the case was that defendant was accountable for Page’s criminal behavior (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2), and the trial court instructed the jury on accountability.

II. The Failure Of The State To Correctly Charge The Offense Of Attempt

The State charged defendant with attempt (murder) based upon the beating of Gordon with a baseball bat in April 1990. However, effective July 1, 1987, the offense of murder, as defined in section 9 — 1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), ceased to exist. Instead, Public Act 84 — 1450 (Pub. Act 84— 1450, eff. July 1, 1987 (1986 Ill. Laws 4221)) replaced murder in section 9 — 1 of the Code with first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). Based upon this statutory change, defendant argues that she was convicted of an offense — attempt (murder) — that no longer existed. Defendant argues that the State’s misnaming of this offense is a fatal defect, which requires reversal of her conviction as a plain error. We disagree.

We first note that defendant at the trial level did not challenge the information which charged her with attempt (murder). In People v. Clay (1988), 167 Ill. App. 3d 628, 634, 521 N.E.2d 243, 248, the court addressed a similar argument and wrote the following:

“The sufficiency of an information *** which is attacked for the first time on appeal[] is not to be determined by whether its form follows precisely the provisions of the statute. (People v. Gilmore (1976), 63 Ill. 2d 23, 29[, 344 N.E.2d 456, 460].) Rather, the information or indictment is considered sufficient if it apprised the accused of the precise offense charged with sufficient specificity so that he could prepare his defense and bar future prosecutions arising out of the same conduct.”

In the present case, that standard has clearly been met. The only change in section 9 — 1 of the Code brought about by Public Act 84— 1450 was to the title of the offense, changing it from “murder” to “first degree murder.” Substantively, the offense of murder was defined no differently than is the offense of first degree murder. The significant change caused by Public Act 84 — 1450 was to section 9 — 2 of the Code, wherein voluntary manslaughter (see Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2) became second degree murder (see Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). (For a more extensive discussion of the nature of these changes, see People v. Newbern (1991), 219 Ill. App. 3d 333.) However, the present case did not involve either second degree murder or attempt (second degree murder). The record shows that the trial court and both counsel fully understood the present case involved a charge of attempt (murder) under section 9 — 1 of the Code, even though no one referred to this offense by its correct title of attempt (first degree murder).

In support of her argument that her conviction for attempt (murder) must be reversed, defendant cites People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527, a decision of this court which held that defendant’s conviction of aggravated criminal sexual assault could not stand because he was charged with committing that offense before the offense was enacted. (Wasson, 175 Ill. App. 3d at 855, 530 N.E.2d at 529.) However, as the State correctly points out, Wasson is distinguishable because aggravated criminal sexual assault, as added to the Code by Public Act 83 — 1067 (Pub. Act 83 — 1067, eff. July 1, 1984 (1983 Ill. Laws 7251)), was an entirely new offense. Accordingly, we reject defendant’s argument that she was somehow hindered in preparing her defense because she was forced to answer to a charge for which she could not have been lawfully convicted.

III. The Failure Of The Attempt (Murder) Instructions To Require The Jury To Find The Specific Intent To Kill

In pertinent part, the jury was instructed that in order to convict defendant of attempt (murder), it had to find beyond a reasonable doubt that defendant, or one for whose conduct she was legally responsible, “performed an act which constituted a substantial step toward the commission of the offense of murder *** and *** did so with intent to commit the offense of murder.” The trial court also instructed the jury as follows: “A person commits the offense of murder when he kills an individual if, in performing the acts which caused the death, he intends to kill or do great bodily harm to that individual or another.” Defendant argues that these instructions were erroneous, and we agree.

In People v. Velasco (1989), 184 Ill. App. 3d 618, 540 N.E.2d 521, the court thoroughly analyzed this issue and wrote the following:

“Our supreme court has unequivocally held that specific intent to kill is an essential element of the offense of attempted murder and, correlatively, that a finding of nothing less than specific intent to kill will sustain a conviction for attempted murder. (People v. Mitchell (1984), 105 Ill. 2d 1, 473 N.E.2d [1270]; People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343; People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) As the supreme court in Jones stated, ‘[kjnowledge [(emphasis in original)] that the consequences of an accused’s act may result in death (or grave bodily injury), *** is not enough; specific intent to kill is required [(emphasis added)] [citation]. Both the indictment and the instructions must unambiguously reflect this.’ *** Jones, 81 Ill. 2d at 8-9, 405 N.E.2d at 345.
***
Reviewing courts of this State have repeatedly stated that attempted murder instructions such as those given here, which include the full definition of murder (IPI Criminal 2d No. 7.01), are erroneous. [Citations to 13 cases omitted.] Nevertheless, as the volume of cases in which this issue is presented demonstrates, attempted murder instructions which erroneously in-elude the full definitional murder language inexplicably continue to be given.” (Emphasis added unless otherwise indicated.) Velasco, 184 Ill. App. 3d at 632-33, 540 N.E.2d at 530.

The State argues that defendant has waived this issue by failing to object at trial to any of these instructions. In response, defendant argues that her failure to raise this issue at trial does not waive the issue on appeal because the error constitutes plain error under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). In People v. Whitehead (1987), 116 Ill. 2d 425, 447-48, 508 N.E.2d 687, 695, the supreme court held that the plain error rule permits a court of review to consider an issue that ordinarily would be deemed waived only when (1) the evidence is closely balanced, or (2) the error was of such magnitude that the accused was denied a fair trial. In our judgment, at least the second — if not both of these criteria — is present in this case.

Prior to defendant’s trial, Page pleaded guilty to attempt (murder) and was sentenced to 20 years in prison. Although the trial court ordered Page brought from prison to the courthouse so that he could testify at defendant’s trial, neither the State nor defendant elected to put him on the witness stand. Thus, the only evidence addressing Page’s specific intent to kill Gordon consists of the following: (1) the inferences the jury may draw from the blows Page struck and the weapon he used; and (2) any pertinent statements made by Page as recounted by defendant, Hammock, or Little.

Regarding the first category of evidence, the record shows that Page administered a vicious beating of Gordon, striking repeated blows with a baseball bat on the face and head of a sleeping, elderly man. However, we do not find Page’s conduct to conclusively establish — that is, so that a trier of fact could not conclude otherwise — that he intended to kill Gordon, as opposed to his performing acts knowing that they would cause great bodily harm to Gordon. (See Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1).) Furthermore, a jury could conclude that Page’s beating of Gordon with a baseball bat — even a beating as severe as this — would not be certain to cause the death of the victim, and therefore would be less indicative of the certainty of Page’s intent to cause death than would have been Page’s use of a gun to shoot Gordon or a knife to stab him. (See People v. Mitchell (1991), 209 Ill. App. 3d 562, 569, 568 N.E.2d 292, 297 (the very fact of firing a gun at another supports the conclusion that the person doing so acted with an intent to kill).) We contrast the facts in the present case with those in Mitchell and hold that beating another person with a baseball bat does not have nearly the evidentiary value of an intent to kill that firing a gun at a person does.

Regarding the second category of evidence addressing Page’s intent, we find no testimony in this record wherein Hammock, Little, or defendant relates that Page told any of them, either before or after his beating of Gordon, that he intended to kill Gordon. The statement of Page that comes closest to explaining Page’s actions is when he told Hammock, Little, and defendant, as they drove to Champaign, that he hit the old man in the head with a baseball bat because he thought the old man had a shotgun.

As discussed in Velasco, two lines of analysis have developed in attempt (murder) cases in which an erroneous instruction has been given to the jury but the defendant failed to object at trial. (Velasco, 184 Ill. App. 3d at 633-34, 540 N.E.2d at 530-31.) The first line of cases holds that because intent is an essential element of the State’s case, giving an erroneous instruction with respect to the mental state required to commit attempt (murder) deprives the jury of the legal tools necessary to determine defendant’s guilt or innocence. Courts following this line of cases have held the erroneous instruction to be plain error and have reversed the convictions without extensive consideration of the evidence. See Velasco, 184 Ill. App. 3d at 633, 540 N.E.2d at 530-31.

The other line of cases holds that where a defendant’s intent is not at issue or is blatantly evident from the facts, the defendant’s attempt (murder) conviction can be sustained because the jury could not reasonably have found defendant not guilty. The courts following this line of cases have thus held that the giving of the incorrect instruction was harmless error. Velasco, 184 Ill. App. 3d at 633-34, 540 N.E.2d at 531.

The record in the present case does not clearly establish why Page thought it necessary to beat Gordon as severely as he did. Although the circumstances surrounding that beating are sufficient to permit the jury to conclude that Page intended to kill Gordon, they are hardly so overwhelming as to compel that conclusion.

In our judgment, the present case is not one in which this court can conclude that the jury could not reasonably have found defendant not guilty. The evidence of Page’s intent to kill Gordon was not overwhelming.

The State further argues that the trial court’s giving of these instructions does not constitute plain error because defendant was tried on the theory of accountability. Because defendant’s guilt was premised upon her accountability for Page’s criminal conduct, the State is correct that the “common design rule,” incorporated within section 5 — 2 of the Code, applies. (Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2.) That rule provides that where two or more people engage in a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all parties are accountable for those acts. (See People v. Terry (1984), 99 Ill. 2d 508, 514, 460 N.E.2d 746, 749; People v. Taylor (1990), 199 Ill. App. 3d 933, 940, 557 N.E.2d 917, 922.) In this case, the jury could find the evidence to be sufficient under the “common design rule” to find defendant accountable for all of Page’s criminal behavior at Gordon’s residence. (See People v. Bell (1991), 209 Ill. App. 3d 438, 446, 568 N.E.2d 238, 243 (State did not have to prove defendant had concurrent specific intent to aid or abet codefendant in the attempt (murders) of the victims; all State had to prove was that defendant aided codefendant in the commission of the contemporaneous armed robberies).) As we see it, the problem in the present case is not with the evidence demonstrating defendant’s accountability; instead, the problem is with the sufficiency of the evidence demonstrating Page’s specific intent to kill Gordon, as required to convict him of attempt (murder) or to convict defendant of attempt (murder) on the theory that she is accountable for Page’s criminal conduct.

We recognize that the State seeks to overcome this issue by pointing out that defendant has conceded in her brief before this court that the “actions [of Page] disclosed the specific intent to kill.” However, this unexplained concession by defendant does not bind this court as we review this record.

For the reasons stated, the trial court’s failure to properly instruct the jury on the definition of attempt (murder) is plain error requiring reversal of defendant’s conviction of attempt (murder).

IV. Evidentiary Issues

Defendant contends that the trial court improperly restricted her efforts to get certain statements of Page before the jury. The first statement in question was when Page told defendant, Hammock, and Little in Danville a few hours after the incident at the Gordon residence that, “I think I killed him.” The second statement, contained in a note Page wrote to his mother and left at her home, could be loosely viewed as being to the same effect as the first statement. The trial court kept out both of these statements on the ground that they were inadmissible hearsay. Defendant argues that both statements are admissible as declarations against Page’s penal interest. However, we need not resolve this issue.

First, we find these statements to have no relevancy to any defense that defendant asserted. The best defendant can do in arguing the statements’ relevancy is to claim that they show Page never referred to “they” as committing the crime against Gordon, but only referred to “he.” However, given the State’s theory that defendant was accountable for Page’s behavior, there is nothing exculpatory of defendant in either of these statements, and both are fully consistent with defendant’s guilt.

Second, as defendant concedes in her brief, the jury heard testimony about Page’s mentioning to defendant, Hammock, and Little in the car after the incident at Gordon’s residence that, “I think I killed him.” Thus, to the extent that this statement had any probative value, it was already before the jury. Essentially, defendant is arguing that the jury should have heard the statement again. Based upon our earlier analysis of both these statements, we find defendant’s argument groundless.

Third, defendant’s argument regarding these statements is addressed primarily to her conviction of attempt (murder). However, because we have already determined that defendant’s conviction of attempt (murder) is to be reversed, defendant’s argument on this point has been mooted.

V. Sentencing Issues

The three offenses of which defendant was convicted — attempt (murder), home invasion, and armed robbery — are all Class X felonies, each carrying a possible sentence of not less than 6 years nor more than 30 years in prison. (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(c)(1), 12 — 11(c), 18 — 2(b), 1005 — 8—1(a)(3).) As stated earlier, defendant was sentenced to 18 years in prison on each of these convictions, with each sentence to run concurrently to the others. On appeal, defendant argues that the trial court considered improper factors in imposing this sentence, thereby abusing its discretion and requiring that a new sentencing hearing be held.

Defendant argues that the trial court “was disturbed” by her evidence in mitigation that she had been sexually assaulted but had not reported the crimes. Defendant also maintains that the trial court “challenged” defendant to justify its not imposing the maximum 30-year sentence. Although we do not believe the trial court was biased against defendant as it sentenced her because it did not approve of how she handled the sexual abuse she claimed she had been subjected to, we can see how the tone of the trial court’s questioning, coupled with its reference to imposing a 30-year sentence, makes this argument colorable. However, we need not address defendant’s argument further because of our decision to reverse defendant’s conviction for attempt (murder). We do not believe these issues likely to arise at re-sentencing.

Accordingly, we remand for further proceedings on the attempt (murder) charge and vacate defendant’s 18-year sentences on her convictions of armed robbery and home invasion.

If, on remand, the State elects to retry defendant on the attempt (murder) charge (which should then be corrected on retrial to a charge of attempt (first degree murder)) and defendant is convicted of attempt (first degree murder), then the trial court can sentence defendant anew on all three Class X convictions. On the other hand, if, on remand, either defendant is retried on attempt (first degree murder) and acquitted or the State elects not to try her again on that charge, then the trial court can sentence defendant anew on the two remaining Class X convictions of armed robbery and home invasion.

Because of our uncertainty over the extent to which defendant’s conviction of attempt (murder) may have been a significant factor in the court’s determination of an appropriate sentence in this case, we believe the best course for us to take is to give the trial court an opportunity to resentence defendant without that conviction being part of defendant’s record (assuming that upon remand defendant is not convicted of that offense or the State chooses not to retry her). In taking this action, however, we should not be understood as agreeing with defendant’s claim that the 18-year concurrent sentences previously imposed were improper or excessive.

IV. Conclusion

For the reasons stated, we affirm defendant’s convictions of armed robbery and home invasion and vacate her sentences for those convictions; we reverse defendant’s conviction of attempt (murder); and we remand this cause for further proceedings consistent "with the views expressed herein.

Affirmed in part; reversed in part, sentences vacated, and cause remanded with directions.

GREEN, P.J., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JACKSON, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0191
    Opinion filed December 13, 1991.
    Daniel D. Yuhas and Lori L. Mosby, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant was convicted of unlawful possession of a weapon by a person in custody of a Department of Corrections (DOC) facility, pursuant to section 24 — 1.1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(b)). Subsequently, the Livingston County court sentenced defendant to a Class X sentence of 20 years, pursuant to section 5 — 5—3(c)(8) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)). Defendant contends that (1) the prior convictions used to enhance his current felony to a Class X felony were not proved beyond a reasonable doubt; (2) his first conviction used to enhance the instant charge was set aside on appeal, and since he was not reconvicted until April 29, 1985, it cannot be said there was a valid conviction at the time of the commission of the second felony; (3) the Class X sentence must be vacated, where the State failed to notify him in the indictment, pursuant to section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 3), that it intended to seek the enhanced Class X penalty; and (4) the trial court improperly considered his two prior convictions in aggravation and to enhance his sentence.

Defendant was charged by indictment with unlawful possession of a weapon by a person in the DOC. The indictment alleged that defendant, an inmate at Pontiac Correctional Center (Pontiac), possessed a dagger-like weapon while confined at a DOC facility. At his arraignment, defendant was advised that if he was unable to afford counsel, one would be appointed for him. Defendant requested that he be allowed to proceed pro se. After explaining the requirements of proceeding pro se and interviewing defendant, the court found him capable of representing himself.

Both parties presented evidence. After deliberating, the jury found defendant guilty as charged. At sentencing, the court reviewed defendant’s presentence investigation report. On August 19, 1979, defendant was convicted in Cook County of murder, attempt (murder), and armed robbery, and sentenced to 60 years for the murder and 60 years for the attempt (murder) and armed robbery, to run consecutive to the sentenced imposed on a 1976 conviction. On September 15, 1981, defendant was an inmate at Menard Correctional Center and was convicted of armed violence and sentenced to 10 years in the DOC, to be served consecutive to the 1979 sentence of 60 years.

The presentence report also indicated that on March 19, 1984, defendant’s 1979 conviction was reversed and remanded for a new trial. Defendant was reconvicted and resentenced in 1985 to the same terms previously imposed.

At sentencing, the judge informed defendant that he was required to sentence him as a Class X felon. The court determined that, based upon the two most recent prior convictions, defendant should receive the Class X sentence. Defendant was sentenced to 20 years, to run consecutively with his current sentence.

Defendant first contends that the court erred in sentencing him as a Class X offender, because his first applicable conviction was reversed after the commission of the second applicable felony. Defendant urges this court to remand the case for resentencing, with instructions for the trial court to impose a nonenhanced sentence. Section 5 — 5—3(c)(8) of the Code states:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8).

The People contend the fact the 1979 felony conviction was reversed after defendant’s 1981 conviction for armed violence would not render defendant ineligible for sentencing as a Class X felon. Instead, the People would have the reconviction of the murder, attempt (murder), and armed robbery relate back to 1979, to qualify defendant for Class X sentencing. The People further argue the reversal of defendant’s 1979 conviction was a mere technicality and that the legislature did not intend for repeat offenders like defendant to escape Class X sentencing because his conviction was reversed for a time. Although the People’s argument is logical, we must look at the plain meaning of the statute.

The court is to give consideration to all the words of the statutory provision so that no word or clause is rendered meaningless or superfluous. (People v. Singleton (1984), 103 Ill. 2d 339, 345, 469 N.E.2d 200, 203.) The cardinal rule is to ascertain and give effect to the intent of the legislature. (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, 285 N.E.2d 129, 130; People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) In determining the legislative intent, the court should first consider the statutory language. (Boykin, 94 Ill. 2d at 141, 445 N.E.2d at 1175.) If the statutory language is clear on its face, it will be given effect without resort to other aids for construction. People v. Robinson (1982), 89 Ill. 2d 469, 475-76, 433 N.E.2d 674, 677.

This statute requires that defendant commit a second felony after he is convicted on the first. Then, the third felony must be committed after conviction on the second. The instant defendant did commit the second felony after conviction of the first felony; however, after the commission and conviction of the second felony, defendant’s conviction of the first felony was reversed on appeal. Defendant was subsequently reconvicted and resentenced on the same charges as he was convicted during the first trial for the first felony. We must determine whether defendant’s reconviction on the first felony relates back to the date of the first conviction. We hold that it does not.

It is a well-established rule that the effect of a reversal of the trial court by a reviewing court is to abrogate the order or judgment reviewed, and leave the proceeding as it stood prior to the entering of the order of judgment. The order of judgment is effectively expunged from the records. (People v. Rea (1979), 80 Ill. App. 3d 77, 80, 399 N.E.2d 302, 304.) Consequently, defendant’s 1979 conviction for his first felony was a nullity after it was reversed. The reconviction cannot be said to have related back to the first. The first conviction is treated as if it never existed. Accordingly, while we affirm defendant’s conviction, we must reverse his Class X sentence. On remand, we would instruct the trial court to resentence defendant to a non-Class X sentence. Defendant poses several other arguments which need not be addressed since we are remanding this cause for resentencing, for further proceedings consistent with this opinion.

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

GREEN, P.J., and STEIGMANN, J., concur.


text:
      In re MARRIAGE OF JOHN A. STASZAK, Petitioner-Appellant, and CHERYL L. STASZAK, Respondent-Appellee.
    Fourth District
    No. 4 — 91—0315
    Opinion filed December 19, 1991.
    Stephen R. Ryan, of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellant.
    K. Rick Keller, of Meyer, Keller & Runde, of Effingham, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner John Staszak appeals from orders of the circuit court of Cumberland County in this marriage dissolution case, contending it was error for the trial court to enter a post-dissolution order granting respondent Cheryl Staszak actual custody of the parties’ son, Jason, during the school year. Petitioner argues the pleadings that resulted in the contested custody order did not contain a prayer for the relief granted. In the alternative, petitioner contends the trial court’s decision modifying custody was against the manifest weight of the evidence.

The problems now before the court stem from what was to be an agreed dissolution agreement, whereby petitioner was represented by counsel but respondent was not. Respondent was the mother who had custody of a child, Christopher Senteney, and the parties were the parents of Jason Staszak, born January 13, 1982. The present dispute concerns the actual custody of Jason.

The petition for dissolution was filed February 5, 1990, and attached to that petition was a marital settlement agreement dated January 24, 1990, which was signed by both petitioner and respondent. Respondent’s entry of appearance and consent to an immediate hearing was filed at the same time the petition was filed. The court file contains proof of mailing of a notice to respondent of a March 1, 1990, “hearing on Motion for setting on March 1, 1990 at 10:00 AM.” On March 1, 1990, a judgment of dissolution of marriage was entered by Judge Thomas M. Burke. That judgment provided, in part:

“5. That one (1) child was born of the marriage, to wit: JASON ALEXANDER born January 13, 1982, none were adopted and the Petitioner is not now known to be pregnant.
* * *
B. That the written Separation Agreement entered into between the parties, is made a part of this Judgment of Dissolution of Marriage, and all the provisions of said order are expressly ratified, confirmed, approved and adopted as the orders of this Court and ordered consummated as soon as possible.”

Except for incorporating the agreement, the dissolution judgment made no specific reference to child custody. The parts of the marital settlement agreement relevant to this appeal state:

“ARTICLE II
Custody of Children
1. Husband and Wife agree that each is a fit and proper person to have the custody of their child, but have decided that a joint custody arraignment [sic] is appropriate with JOHN A. STASZAK, as the primary custodian. It [is] expressly agreed and understood by and between the parties that Husband retains the right and obligations to execute any necessary consents, medical permissions, educational decisions and the like. Husband may delegate these and like responsibilities to the wife and expressly herein agrees not to unreasonably withhold such delegation. All such decisions shall be ultimately decided with due regard for the best interests of the child.
2. Both Husband and Wife shall use their best efforts to foster the respect, love and affection of the children, toward each parent and shall cooperate fully in implementing a relationship with the children that will give the maximum feeling of security that may be possible. The parties shall further cooperate fully in implementing the visitation programs herein after [sic] set forth to accommodate the social and school commitments of the children.
3. Both Husband and Wife shall keep each other informed as to the exact place where each of them resides, the telephone numbers of their places of employment. Wife agrees not to take JASON out of the State of Illinois without the express written permission of the husband. If either party travels out of state for any period of time, then such person shall notify the other of his or her destination and provide a telephone number where her [sic] or she can be reached.
4. Each party shall advise the other of any serious illness or injury suffered by any child as soon as possible after learning of the same. Each party shall direct all doctors involved in the care and treatment of such child to give the other party all information regarding the illness if they requests [sic] same.
ARTICLE III
Child Visitation
1. Each grandparents [sic] shall have reasonable rights of visitation with the child of the parties.
2. The minor child shall continue to reside with the wife for the remainder of this school year and then with the husband beginning with the summer vacation immediately after this school year. Each party retains visitation with the minor child of two (2) weekends per month during the time said child is residing with the other parent. In addition, and in consideration of the fondness felt by the husband and the integration achieved to date, Wife grants to husband reasonable non-specific visitation with her other son, CHRISTOPHER LEE SENTENEY.
3. Each party shall be granted non specific [sic] visitation as is reasonable and agreeable with the parties and with the children.
3. [sic] If any child becomes seriously ill or injured during the time of visitation the parent in charge shall notify the other of the same as soon as possible and shall give details of said illness or injury and the name and telephone number of the attending physician, if any.
ARTICLE IV
Child Support and Related Matters
1. Husband shall pay to the Clerk of the Circuit Court of Cumberland County for the support and maintenance of the minor children, the sum of 20% of his net income. The parties agree that the current amount certain payable shall be the sum of TWO HUNDRED NO/100 DOLLARS ($200.00) monthly, payable only during those months the minor child actually resides with the mother. Said sum shall continue until JASON ALEXANDER STASZAK obtains the age of eighteen years or becomes emancipated, which ever occurs first. Wife shall keep the Circuit Clerk advised as to her current address so that support checks may be forwarded to her without delay. Statutory Deduction Order will not issue until such time as the husband become [sic] delinquent in said payments.”

On April 2, 1990, respondent, by the attorney now representing her, filed a motion to modify judgment of dissolution of marriage, stating the settlement agreement did not contain the entire agreement as to “physical custody and living arrangements” of Jason. The motion stated, in part:

“6. That the true agreement was that Respondent would have physical possession of the minor child during the nine months of the school year and Petitioner would have physical possession of the minor child during the three month summer vacation.
7. That Respondent did not fully or completely understand the legal significance of the documents she signed, and had she so understood, would not have signed them.
8. That justice and the best interests of the minor child require that the Judgment concerning custody be vacated.
WHEREFORE, Respondent, CHERYL L. STASZAK, prays that the portion of the Judgment of Dissolution of Marriage be vacated and the issue be set for hearing.”

Petitioner answered the motion on May 17, 1990, denying respondent’s allegations in paragraph Nos. 6 and 8.

On May 31, 1990, Judge Burke denied a motion to dismiss respondent’s motion and heard testimony from both petitioner and respondent. Respondent’s testimony basically related to the pressure on her to sign the agreement without reading it. She testified she understood she would have custody of Jason during the various school years, and petitioner would have custody during the summers. Both petitioner and respondent testified that no lawyer was present at the time of the signing, and the signatures were acknowledged at the Mattoon police department. A copy of the agreement was not given to respondent at the time of signing. She denied receiving notice of the March 1, 1990, court hearing. At the May 31, 1990, hearing, there was also an insignificant amount of evidence as to the best interest of Jason, and a very limited examination of the petitioner. At the end of the evidence and arguments, the trial judge’s oral decision contained the following statement:

“Under these circumstances, I am inclined to feel that the testimony of Mrs. Staszak as to what happened on that occasion is more credible and I am inclined to accept it as more nearly a clear statement of what happened. She had been led to believe that Mr. Staszak had yielded on that point but Mr. Staszak hurried her to the point where she wasn’t able to verify that. She was obviously nervous and upset at that time as she was nervous and upset at the time she testified in this courtroom.
Under those circumstances, I believe that there has been an overpowering influence on this Respondent by the Petitioner in securing the execution of that document and all of this conduct on that occasion tends to indicate that he intended to keep from her the terms and conditions of that [sic] custody arrangements of that document. Under those circumstances, I am inclined to believe that there is merit to the proposition that the document does not in fact state the agreement that the parties had entered into and that Mr. Staszak knew at the time it was executed that it did not state the agreement that the parties had entered into. So, I find that the prayer [f|or the Motion for Modification of the Judgment of Dissolution shall be granted. However, I see no reason in this case to strike all of the provisions with reference to custody. The contention of Mrs. Staszak is that she entered into an agreement; and on the basis of the ruling of the Court, I feel like she is entitled to that agreement and nothing more. There is no reason to relitigate questions — of all of the questions of custody and control. In her petition — in her motion and in her testimony, she says that the agreement was that she should have the custody of the minor child during the nine months of the school year and that the Petitioner would have — should have the custody of the minor child during the three months summer vacation. It is my order that this Judgment of Dissolution of Marriage which was entered in this case on March 1st of 1990 will be so modified.”

Following this statement, respondent’s attorney was directed to prepare a written order. Petitioner’s attorney immediately objected to the court’s decision, arguing that custody was being fixed without a hearing as to the best interests of the child.

On June 28, 1990, petitioner filed a motion to reconsider or, in the alternative, for a new trial. That motion, in part, argued the issues presented in this present appeal. The written order, which the court had directed to be prepared on May 31, 1990, was executed and filed on August 13, 1990. On that same date, other matters in the case were considered, and Judge Burke heard the motion for reconsideration. The motion was taken under advisement, but Judge Burke retired from the bench without ruling on it.

Petitioner changed attorneys and, on January 22, 1991, filed a motion for hearing de novo, suggesting the absence of a decision on the motion for reconsideration, coupled with the retirement of the previous judge, required a new hearing as to the matters heard on May 31, 1990. The de novo motion hearing was argued on March 19, 1991, and the presiding judge issued a decision letter on March 26, 1991, filing an order on April 10, 1991, and denying the hearing de novo.

Initially, we acknowledge that additional matters relating to visitation and contempt are part of the record, but we find they are not relevant to this appeal and we have not considered them. We further hold there was sufficient evidence presented at the May 31, 1990, hearing to justify Judge Burke’s decision, holding that the provision in the marital settlement agreement did not accurately reflect the parties’ agreement as to child custody and, therefore, had to be modified. However, we do not agree with that part of the order automatically amending the custody agreement without providing a best-interest hearing.

The May 31, 1990, hearing was basically limited to the question of whether respondent understood and agreed to a child-custody provision, giving actual custody of Jason to petitioner for an indefinite period of time beginning summer 1990. No attempt was made by either petitioner or respondent to litigate the best-interest issue at the time of the May 31, 1990, hearing. Petitioner took the position that he had the right to actual custody at the beginning of the summer and continuing through the school year, and respondent took the position she had not agreed to such a provision and did not understand that it was in the agreement.

The principal child-custody provisions are contained in sections 601 through 611 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, pars. 601 through 611). The determining factor in custody disputes is the best interest of the child. In the absence of an agreement between the parties, a hearing by the court, with evidence by all sides being presented and considered, is necessary. See Henrikson v. Henrikson (1975), 26 Ill. App. 3d 37, 39, 324 N.E.2d 473, 475; Ill. Rev. Stat. 1989, ch. 40, par. 602; 1 H. Gitlin, Gitlin on Divorce par. 11.07(A) (1991).

It is clear from the record there is a dispute over the custody of Jason. We do not understand this case to be one where the parties are disputing the interpretation of the agreement, even though some question of its intent might exist. With the determination that respondent at no time intended to agree to petitioner’s indefinite custody after the beginning of summer 1990, it is apparent there was a difference of opinion between the parties as to the question of custody. In such cases, there cannot be an adjudication of custody without the presentation of evidence and an opportunity to cross-examine. Such a hearing was not granted in this case, and the trial court must be reversed.

We conclude that only the child-custody matters and related child-support issues contained in the marital settlement agreement need be vacated. The joint-custody provision in that agreement must also be reconsidered, including the provisions of article II, paragraph (1) of the agreement, wherein the husband purports to retain “the right and obligations to execute any necessary consents, medical permissions, educational decisions and the like,” though he may “delegate” these responsibilities to the wife. The trial court should now provide a full hearing and make a determination regarding the matters vacated, and the joint-custody provision thus called into question.

Reversed in part, and remanded with directions.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE KNECHT

text:
    TIMOTHY SHUTES, Petitioner-Appellee, v. GENE FOWLER, Indiv. and Gene Fowler, d/b/a Sentry Design and Construction, Respondent (Michael R. Cornyn, Appellant).
    Fourth District
    No. 4 — 91—0383
    Opinion filed December 19, 1991.

      Michael R. Cornyn, of Thomas, Mamer & Haughey, of Champaign, appellant pro se.

    Michael C. Upperman, of Gunn & Hickman, P.C., of Danville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The issue is whether Supreme Court Rule 224 (134 Ill. 2d R. 224) is constitutional. We conclude it is.

On January 30, 1991, Timothy Shutes filed a petition for discovery pursuant to Supreme Court Rule 224. The petition alleged Gene Fowler owned Sentry Design and Construction and employed Shutes. During the course of his employment, Shutes sustained bodily injuries on February 19, 1990, while working on a project in Orlando, Florida. Other construction companies were involved at the site and, according to the petition, were possibly responsible for Shutes’ injuries. The identities of these companies were unknown to Shutes and thus he sought discovery from Fowler to determine their identities.

Fowler filed a motion to dismiss pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(1)). The motion alleged the court was without jurisdiction because there was no case or controversy. No lawsuit had been filed in Illinois or Florida. Apparently no suit has since been filed. Fowler’s motion asserted Rule 224 is void because (1) the supreme court lacked authority to promulgate it, (2) it confers jurisdiction when there is no case or controversy, and (3) it violates his due process rights because it is vague, ambiguous, and violative of his rights of privacy, liberty and property.

In March 1991, the circuit court rejected Fowler’s arguments and ordered compliance with discovery pursuant to Rule 224. Fowler’s attorney, Michael R. Cornyn, refused to comply with the discovery order. In May 1991, the circuit court found him in civil contempt. He appeals, arguing Rule 224 is unconstitutional and conferred no jurisdiction on the circuit court.

Rule 224 states, in pertinent part:

“(i) A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.
(ii) The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.” 134 Ill. 2d R 224(a)(1).

Cornyn argues only the Illinois Constitution and legislative enactments can confer jurisdiction on the courts. The Illinois Constitution limits the jurisdiction of the circuit courts to “justiciable matters.” (Ill. Const. 1970, art. VI, §9.) He contends because a Rule 224 petition presents no case or controversy and seeks no remedy or redress, it does not raise a justiciable matter and the court is without subject-matter jurisdiction.

According to Cornyn, the legislature has not enacted a statute permitting discovery prior to the filing of a lawsuit, even though section 2 — 402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) permits actions against respondents in discovery. This interpretation of section 2 — 402 conforms with our decisions in Gonzales v. Pro Ambulance Service (1991), 219 Ill. App. 3d 284, 579 N.E.2d 1184, and Armour v. Petersen (1991), 219 Ill. App. 3d 289, 579 N.E.2d 1188. In Gonzales we held section 2 — 402 clearly states a respondent in discovery may be designated only in addition to a named defendant. (Gonzales, 219 Ill. App. 3d at 286, 579 N.E.2d at 1186.) “[A] complaint naming only respondents in discovery is not a complaint at law, as it does not charge actionable conduct or seek damages.” (Gonzales, 219 Ill. App. 3d at 286-87, 579 N.E.2d at 1186.) The decisions in Gonzales and Armour were based solely on the language of section 2 — 402, which allows the designation of respondents in discovery “other than the named defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402.) We note the Fifth District Appellate Court reached a similar conclusion in Jacobs v. Abbott Laboratories (1991), 213 Ill. App. 3d 998, 572 N.E.2d 1231.

The common law also fails to provide a basis for Rule 224.

“At common law, the courts had no power to require a party to an action to answer interrogatories. The equitable bill of discovery was used to enable a plaintiff to obtain information and prepare his cause for trial on the ultimate issues. (16 Ill. L. & Prac. Discovery §2 (1971).) These bills were made ancillary to already pending claims for substantive legal or equitable relief.” (Emphasis added.) Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 529, 561 N.E.2d 1339,1341.

Thus Cornyn asks, “If section 2 — 402 of the Code of Civil Procedure does not confer upon the Court jurisdiction to proceed for purposes of discovery only and if there is no Constitutional or common law basis to proceed, where is the basis of jurisdiction?”

We conclude the Rule 224 petition became a justiciable matter when the supreme court determined that, under its rule-making authority, a litigant can file for discovery to learn the identities of potential parties before filing a lawsuit. This is analogous to the creation of a “justiciable matter” by the legislature when it enacts a statute having no counterpart in common law or equity. Skilling v. Skilling (1982), 104 Ill. App. 3d 213, 432 N.E.2d 881.

Contrary to Cornyn’s assertions, the court did have authority to adopt Rule 224. Section 1 — 104 of the Code, for example, provides, in pertinent part:

“(a) The Supreme Court of this State has power to make rules of pleading, practice and procedure for the circuit, Appellate and Supreme Courts supplementary to, but not inconsistent with the provisions of this Act, and to amend the same, for the purpose of making this Act effective for the convenient administration of justice, and otherwise simplifying judicial procedure ***.” (111. Rev. Stat. 1989, ch. 110, par. 1 — 104(a).)

The supreme court has held “[t]he Illinois Constitution clearly empowers this court to promulgate procedural rules to facilitate the judiciary in the discharge of its constitutional duties.” O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281, 492 N.E.2d 1322, 1326.

Appellant next argues Rule 224 raises “basic and significant due process concerns.” Briefly summarized, he asserts Rule 224 is so vague it will be abused, i.e., used to engage in “fishing expeditions.” As Shutes points out, however, any action has potential for misuse by the unscrupulous. Discovery under Rule 224 is limited to ascertaining the identities of potential defendants. The petition seeking discovery must be verified and be served 14 days before the hearing, at which the court determines whether to issue a discovery order. Once the order is entered, the petitioner bears the reasonable expenses of compliance.

The rule requires a hearing on the petition for discovery and thus involves the trial court in the process. The trial court must issue an order for discovery before discovery can occur. This involvement of the circuit court protects against abuses of the discovery process. We have faith in the abilities of the trial judges of this State to recognize and refuse to permit “fishing expeditions” and other abuses, even without written guidelines.

The clear and specific requirements of Rule 224 lead us to conclude the rule is not unconstitutionally vague or overbroad. Instead, the rule supplements section 2 — 402 of the Code and works to streamline the court process.

As for the concern that the rule requires a respondent to give his time, property and right of privacy without just compensation or basis to defend himself, we note all discovery requires the respondent give up something. Rule 224 is far less burdensome and intrusive than even section 2 — 402.

Rule 224 is constitutional and confers subject-matter jurisdiction on the circuit court. The public policy of the State supports the rule’s validity and its continued use. The Vermilion County circuit court properly considered Shutes’ petition for discovery, ordered discovery, and held Cornyn in contempt for his refusal to comply with the order. The order of the circuit court is affirmed.

Affirmed.

McCULLOUGH and LUND, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROSIE BROWN, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0273
    Opinion filed December 19, 1991.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Rosie Brown pleaded guilty to one count of criminal sexual assault in that between January 1989 and December 1989 she allowed her son, to whom we shall refer as “A,” a person under 18 years of age, to place his penis in her vagina. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3).) Defendant was thereafter sentenced to eight years’ imprisonment.

On appeal, the only issues raised concern the sentence. Defendant argues the sentence was excessive and resulted from an abuse of discretion. She also contends the sentencing court should not have considered testimony of a therapist concerning the out-of-court statements of defendant’s two sons regarding other criminal conduct by her of which she had not been convicted.

Specifically, defendant contends the trial court should not have considered the testimony of Dr. Elizabeth A. Scott, a psychologist under contract to do counseling work for the Illinois Department of Children and Family Services. Her testimony concerned her counseling sessions with defendant’s sons, A (born May 27, 1976), and a younger son (born December 5, 1977), and their relating sexual contact with defendant over a period encompassing four or five years. On appeal, defendant argues that hearsay evidence of prior criminal activity for which there has been no conviction is inadmissible at sentencing (People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Stoutenborough (1978), 64 Ill. App. 3d 489, 381 N.E.2d 415), and that the State failed to qualify this testimony under any statutory exception to the rule against hearsay. See, e.g., Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 10, 115 — 13.

Initially, we note that the issue is waived since defendant did not object on this ground at the sentencing hearing and did not raise this issue in her motion to reduce the sentence. (People v. Carroll (1990), 195 Ill. App. 3d 445, 552 N.E.2d 361, appeal denied (1990), 132 Ill. 2d 548, 555 N.E.2d 379; People v. Killings (1986), 150 Ill. App. 3d 900, 501 N.E.2d 1363.) On the merits, we find no error occurred. The parties argue the applicability of section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10) and whether compliance with these provisions was had. There is no reason to address the applicability of this section in this case.

At the sentencing hearing, defendant indicated there were no additions or corrections to the presentence investigation report. There is extensive reference in the report to the sexual relations of defendant with the boys. In addition, there is a reference to the boys being adjudicated abused minors based on allegations of sexual abuse. We consider evidence of such a judicial determination to be admissible as would be the report of a prior conviction of defendant. Even though the burden of proof may be different, the reliability of the facts has been sufficiently established so that those facts are admissible at a sentencing hearing, though they would not be at an earlier stage.

At the sentencing stage, the judge is not strictly bound by the rules of evidence which govern the trial to determine defendant’s guilt. Instead, as long as care is taken to ensure the accuracy of the information and avoid any prejudice from improper material, the sentencing judge may search anywhere within reasonable bounds to discover facts in aggravation or mitigation, particularly those which pertain to the defendant’s moral character, mentality, habits, social environment, abnormal or subnormal tendencies, age, natural inclination or aversion to commit crime, and the stimuli which motivated the conduct. (La Pointe, 88 Ill. 2d at 494-99, 431 N.E.2d at 349-52.) Here, there was sufficient indicia of reliability for the trial court to consider the adjudication in the juvenile proceeding and to consider the testimony of Scott, which assisted the sentencing judge to more fully comprehend the basis for the finding in the juvenile proceeding.

With regard to the severity of the sentence, defendant argues the trial judge relied too heavily on the fact that the sexual conduct of defendant with her sons persisted over a long period of time. According to defendant, there are several factors in mitigation, such as the absence of a prior criminal record or involvement in drugs or alcohol, full-time employment, a suitability report indicating defendant was a qualified candidate for the intensive probation supervision program, and the fact defendant informed the court she was fully prepared to satisfy any requirements deemed appropriate for probation under section 5 — 5—3(e) of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(e).) As a result, defendant concludes it was an abuse of discretion for the trial judge to reject a sentence of probation and to impose an eight-year sentence of imprisonment.

When a sentence is imposed which is within the permissible statutory range for the offense to which defendant pleaded guilty, the sentence will not be overturned on review in the absence of a showing that the sentence resulted from an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Defendant pleaded guilty to a Class 1 felony (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(b)), the permissible statutory range of imprisonment which is not less than 4 years nor more than 15 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(4)).

Only under certain express conditions may a person convicted of criminal sexual assault be sentenced to probation. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3(c)(2)(H), 1005 — 5—3(e).) The trial court considered the mitigating factors and aggravating factors and found a sentence of probation would deprecate the seriousness of the offense. The defendant was sentenced to eight years’ imprisonment. On this record, we find no abuse of sentencing discretion.

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

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.