author: JUSTICE WELCH JUSTICE WILLIAM A. LEWIS, JUSTICE CHAPMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHUCK GARD, Defendant-Appellant.
    Fifth District
    No. 5—91—0541
    Opinion filed October 29, 1992.

      W. LEWIS, J., specially concurring.
    CHAPMAN, J., dissenting.
    Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Michael Kiley, State’s Attorney, of Shelbyville (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Chuck Gard, appeals from his convictions on two counts of arson. He was tried before a jury in the circuit court of Shelby County on May 6-8, 1991. On June 26, 1991, defendant was sentenced to serve two concurrent terms of four years’ imprisonment, and judgment was entered on the convictions. Defendant raises three issues on appeal: (1) whether it was reversible error for both the prosecutor and defense counsel to repeatedly refer to the fact that polygraph examinations had been given to two witnesses, Diana King and John Clutter; (2) whether one of defendant’s convictions must be vacated because both convictions are based on a single act; and (3) whether the defendant’s sentence of fours years’ imprisonment is excessive and must be reduced in light of his potential for rehabilitation and in light of his codefendant’s lesser sentence. For the reasons which follow, we affirm defendant’s convictions and sentences.

Defendant, along with his codefendant, Diana King, was charged, by information filed in the circuit court of Shelby County on September 7, 1991, with two counts of arson in that, on or about July 31, 1990, he did, (1) by means of fire, knowingly damage a building without the owners’ consent, and (2) by means of fire, and with the intent to defraud an insurer, knowingly damage a building. We will summarize the evidence presented at defendant’s jury trial to the extent it is necessary to resolve the issues before us on appeal.

The owner of the damaged building, David Eberspacher, testified that he did not give anyone permission to damage the building by fire. The building was insured by Cincinnati Insurance Company. The building contained several offices on lease, including a portion of the building leased by Diana King and used by her as a music store known as Music Mountain. The building owners did not provide for insurance on the contents of the building. Access to the basement of the building could be gained from a manhole and a grate both located in the sidewalk in front of the building. The defendant was not a party to any lease of the building.

Insurance agent Richard Firnhaber represents Cincinnati Insurance Company, which had a fire and liability insurance policy on the business of Diana King known as Music Mountain. The policy insured only the contents of the business against fire. Diana King provided Firnhaber with a list of contents that had been destroyed in the fire. The amount of the insurance on the contents of the building was $20,000. The amount of the claim submitted was $17,438. Defendant is not a beneficiary of any insurance policy covering Music Mountain.

Michael Macklin can see the Music Mountain store from the window of his residence. At approximately midnight on July 28, 1990, he was up late watching television. He heard a noise outside, and when he looked out his window, he observed Diana King and her boy friend moving furniture into the back of a truck. He identified defendant as the boy friend. At approximately 3:30 on the morning of July 31, 1990, Macklin was awakened and told to evacuate his residence as the building across the street was on fire.

Diana King testified that she was 30 years of age and had been romantically involved with the defendant. They met in June 1990, and she began living with him in July 1990. King was the owner of Music Mountain, a music store that sold cassettes and related items. She had started the business in December 1989. In June and July 1990, business was very bad, and King thought about burning the business and collecting the insurance money in order to get out of it.

Approximately one week before the fire, King discussed with defendant her idea of burning the building. They discussed collecting the insurance money, paying off their debts and purchasing a Harley Davidson motorcycle. They went so far as to pick out the motorcycle they wanted. They later discussed it again and decided to do it. On the Saturday before the fire, King and defendant placed a faulty extension cord on some flammable materials in hopes it would start a fire. Also present was John Clutter, an employee of the store who also resided with King and defendant. They left the store. No fire occurred. They returned to the store on Monday, and after they left, defendant told King that he had placed a cigarette in a chair. On Monday night, when they realized again that no fire had started, defendant suggested that they go back that night and start one. King and defendant returned to the store at approximately 1:30 a.m. They planned to make it look as if a burglary had occurred. King took tapes and other items from the store, including the money from the cash register. Defendant kicked the basement door in to make it appear that someone had entered the store from the basement. However, he kicked it from the wrong side. Defendant then set a chair on fire with his cigarette lighter. They returned home.

The police informed them of the fire at approximately 9 a.m. King later told John Clutter that she and defendant had started the fire. King submitted a claim in the approximate amount of $17,000 to her insurance company. Defendant knew that she was planning to do this.

King was interviewed by the police three different times. When asked in direct examination who was present for the second interview, King responded, “Mr. Marlow and the man that gave the lie detector test.” She denied any involvement in the fire. On September 7, 1990, King confessed to the police, and she was placed under arrest. King had pleaded guilty to two counts of arson but had not yet been sentenced at the time of defendant’s trial. The State had agreed to recommend a three-year prison term in return for King’s guilty plea.

In cross-examination, in establishing the chronology of the various interviews King had with the police, she mentioned a lie detector test. Nothing King said during the lie detector test was revealed in testimony, nor was the result of that test revealed in testimony. King also testified that John Clutter had taken a lie detector test, but she did not describe the results of that test or any statements made by Clutter during the test.

John Clutter was called to testify. He was 20 years of age at the time of trial. He worked at Music Mountain. In July 1990, King began joking about burning the business. On July 28, 1990, Clutter observed defendant place a faulty extension cord on top of some flammable materials. Clutter was residing with King and defendant. Clutter learned of the fire at noon on July 31, 1990. That day, defendant told Clutter that the extension cord had not worked and that he had started the fire with a cigarette lighter. The prosecutor asked Clutter whether he had been asked to take a lie detector test, and Clutter responded affirmatively. Defendant told Clutter that the tests were easy to beat and told him how to do it. Clutter was promised a leather jacket by King if he passed the test. Clutter was also given a guitar by King and defendant because they did not want it to burn in the fire. King removed many tapes from the store prior to the fire and brought them to defendant’s residence.

On cross-examination, defense counsel inquired of Clutter regarding his polygraph examination. Clutter admitted having taken the exam and testified that the examiner told him he had failed. Clutter testified that he had stated during the examination that he knew nothing about the fire. After he was told he failed the polygraph examination, Clutter admitted his knowledge regarding the fire.

Donald Tankersly is an arson investigator with the office of the State Fire Marshall. He .investigated the fire of Music Mountain. He determined that the fire began in an overstuffed chair and had burned for approximately 30 minutes before being reported. The basement door had been forced open. Tankersly participated in an interview of defendant in which defendant admitted his complicity in the fire. Defendant stated that he and King had started the fire in order to collect insurance money. Defendant admitted having kicked the basement door open and setting the overstuffed chair on fire.

Jeff Marlow, special agent with the Illinois State Police, Division of Criminal Investigation, testified that he participated in the interview of defendant in which defendant admitted his involvement in the fire. Defendant had been involved in a romantic relationship with Diana King for approximately two months prior to the fire. On July 28, 1990, pursuant to discussions he had had with King, defendant decided to try to burn the store in order to-collect insurance money. At approximately 1:30 a.m. on July 31, 1990, King and defendant went to the store, and using a cigarette lighter, defendant set the overstuffed chair on fire. Defendant also stated that he kicked the basement door open. King removed several cassette tapes from the store and took them to defendant’s residence. A guitar had been given to John Clutter on July 28. The State rested.

The defense called Timothy McClain, a Shelbyville police officer, who testified that he discovered the fire and reported it between 3:40 and 3:55 a.m.

The defense called John Clutter and asked him whether he had taken a polygraph examination. Clutter responded affirmatively. The examination of Clutter consisted of attempts to impeach him. Donald Tankersly was called by the defense in an attempt to establish impeachment of Clutter’s testimony.

Christina Punches testified that she had known Diana King for one year. King had worked for Punches in her tavern. Approximately three months prior to the fire, King told Punches that if Punches could find someone to “torch” the Music Mountain store, King would split the insurance proceeds with her. King brought this subject up often with Punches.

The defense called Jeff Marlow in an attempt to impeach the testimony of John Clutter and to impeach Marlow’s testimony given in the State’s case in chief.

Finally, the defense called Diana King to testify that the idea of the arson originated with her and that she had told Marlow in one of her interviews with him that she had actually set the fire. On cross-examination by the State, she indicated that she also told Marlow that defendant was with her when she set the fire and that defendant kicked in the basement door. King testified that she did not actually set the fire.

The defense rested and the State presented no rebuttal evidence. Following closing arguments and instructions, the jury returned verdicts of guilty on both counts.

The defendant’s first argument on appeal is that he was prejudiced by repeated references by both the prosecutor and defense counsel to the fact that State.witnesses Diana King and John Clutter had been given polygraph examinations and that his convictions must therefore be reversed. Relying on People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, defendant argues that testimony concerning whether King and Clutter had taken polygraph examinations was inadmissible, even if defendant agreed to the submission of that evidence, because of the inherent unreliability of the polygraph test. Defendant further argues that because the admission of such evidence fundamentally impinges on a defendant’s right to a fair trial, it constitutes reviewable plain error even where defendant fails to object to the evidence. Furthermore, defendant argues, his counsel’s failure to object to admission of the evidence either at trial or in a post-trial motion rendered his assistance ineffective, depriving defendant of his constitutional right to the effective assistance of counsel.

In Baynes, our supreme court held that the admission of evidence that a defendant has taken a polygraph examination constitutes plain error because it impinges upon the integrity of our judicial system. This is true even where the parties stipulate to the admission of the evidence. Polygraph evidence is not reliable enough to be admitted into evidence, and its prejudicial effect substantially outweighs its probative value because no other form of evidence is as likely to be considered as completely determinative of guilt or innocence as a polygraph examination. In Baynes, evidence was admitted that the defendant had submitted to a polygraph examination, that certain specified questions had been asked of defendant, and that defendant’s answers, which were revealed, were not truthful.

Indeed, it has been held that not only are the results of a defendant’s polygraph examination inadmissible at his trial but any reference in a criminal trial to the fact that a polygraph examination was offered to, or refused by, a defendant constitutes error. (People v. Eickhoff (1984), 129 Ill. App. 3d 99, 102-03, 471 N.E.2d 1066, 1068.) In Eickhoff the court stated,

“Testimony that a defendant was offered a polygraph test, or that he refused one, interjects into the case inferences which bear directly on his guilt or innocence: either he failed the test — as the State presumably would not pursue charges against an innocent — or he refused to submit to testing in fear that his guilt would be shown. That which may not be accomplished directly by evidence of polygraph test results may not be accomplished indirectly by references to whether a defendant sought, declined, or was offered a polygraph test.” (Emphasis in original.) 129 Ill. App. 3d at 103, 471 N.E.2d at 1069.

Finally, use of polygraph evidence with respect to a defendant in a criminal trial constitutes reversible error regardless of the weight of the other evidence because it necessarily interferes with the integrity of the judicial process. It can never constitute harmless error. People v. Thomas (1984), 123 Ill. App. 3d 857, 867, 463 N.E.2d 832, 840.

However, it has been held that the same general rules do not apply when the polygraph examination in question was given to a witness rather than to the defendant. (People v. Parisie (1972), 5 Ill. App. 3d 1009, 287 N.E.2d 310.) While we find no case precisely on point factually with the one at bar, we are able to distill from those cases which have addressed polygraph examination evidence with respect to witnesses a rule of law to apply to the case at bar.

In Parisie, a State’s rebuttal witness testified that he had taken a polygraph test at the request of the State. He did not testify to the result of the test, but it was established that the witness had also been investigated in connection with the crime. The court struck the witness’ testimony with regard to the polygraph exam.

Recognizing the general rule that admission of polygraph evidence with respect to a defendant constitutes reversible error, the court stated that it was aware of no authority holding that testimony by a witness that he had submitted to a polygraph test is so prejudicial to the defendant that reversible error, has been committed. The testimony regarding the taking of the polygraph test was purely with reference to the witness and not the defendant. It did not go to any material issue as to defendant’s guilt or innocence of the offense. Because the court had sustained the objection to the witness’ answer that he had taken a polygraph test and instructed the jury to disregard the testimony, any error was harmless and not of sufficient prejudice to defendant to be reversible.

In People v. Martin (1965), 62 Ill. App. 2d 203, 210 N.E.2d 798, aff’d (1966), 35 Ill. 2d 289, 220 N.E.2d 170, testimony that a witness had taken a lie detector test was held properly admitted; there were no statements about the results of the test. Because the testimony was only about the fact that the test was taken and not the result of the test, it did not raise any issue as to the reliability of the lie detector test. Therefore, its exclusion was not justified. In that case, the witness testified that he had lied in his first interview with the police but told the truth in his second interview, after he had taken the lie detector test.

It has been held, however, that it is prejudicial error to admit evidence that complaining witnesses in a sexual abuse case had submitted to polygraph examinations even where the results of the tests are not admitted. (People v. York (1975), 29 Ill. App. 3d 113, 120, 329 N.E.2d 845, 850.) Any evidence of the veracity of the complaining witnesses about the charges lodged against defendant was clearly prejudicial to defendant. Even though the results of the tests were not admitted, the obvious implication was that had the results been negative, the case would not have been prosecuted.

In People v. Rutledge (1977), 45 Ill. App. 3d 779, 782, 359 N.E.2d 1233, 1235, the prosecutor asked a witness whether he had been offered a polygraph examination. An objection was sustained before the witness could answer. Although the issue was not raised in defendant’s post-trial motion, the court held that the alleged error came within the plain error rule in part because of the closeness of the case against the defendant and the significance of the witness’ testimony. The court then pointed out that although the rule excluding evidence of polygraph examinations of the defendant does not necessarily apply to a polygraph examination of a witness, the rationale found in those decisions is equally applicable with respect to a witness. Thus, the question asked of the witness was improper, and the trial court properly sustained defendant’s objection. Furthermore, because the testimony of the witness was a significant factor in establishing the defendant’s alibi defense, any questions importing lack of truthfulness to the witness were particularly prejudicial to the defense. Because of the prejudicial effect of several trial errors, defendant’s conviction was reversed and the cause was remanded for a new trial.

In People v. Poliquin (1981) 97 Ill. App. 3d 122, 132, 421 N.E.2d 1362, 1370, a police officer testified that a coconspirator of defendant’s had been given a lie detector test. This coconspirator did not testify at trial. The court held that testimony that the coconspirator had taken the examination did not mean defendant had either taken or failed the test. The coconspirator did not testify at defendant’s trial, and therefore her credibility was not in issue. The fact that the coconspirator had taken a polygraph examination had no relation to or bearing upon the guilt or innocence of defendant. Finally, the court held that even if admission of the evidence in question constituted error, the strength of the evidence adduced by the State rendered the error harmless.

In People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396, the admission of evidence that certain State witnesses may have taken polygraph examinations prior to testifying at defendant’s trial was held not to be reversible error where there was no showing that any particular witness took such a test, the results of the test were not presented, and the jury was instructed to disregard any reference to the tests.

Finally, in People v. Escobar (1988), 168 Ill. App. 3d 30, 43, 522 N.E.2d 191, 200, a witness, in recounting the events of the day that he was questioned by police, included a brief reference to taking a polygraph examination. Because this testimony was elicited by defense counsel, the court on appeal found no error. However, the prosecutor mentioned this testimony in his closing argument. The court reviewed the claim of error under the plain error rule although defense counsel did not object to the prosecutor’s argument, but the court found that the strength of the State’s evidence rendered harmless the prosecutor’s erroneous remark.

In all of these cases, only the fact that the witness had taken a polygraph examination was admitted into evidence; there was no evidence of the result of the exam. From these cases, it appears that while admission of such evidence constitutes error, and even plain error, it does not necessarily constitute reversible error. The crucial factor in determining the prejudice to the defendant seems to be the importance of the witness’ testimony and the extent to which the credibility and testimony of that witness reflect on the issue of defendant’s guilt or innocence.

Thus, in York, where the witnesses who had submitted to the polygraph examination were the complaining -witnesses in a case against defendant charging sexual abuse (incest), a case where the question of guilt or innocence often and almost inherently turns on the credibility of the complaining witness versus that of the defendant, admission of evidence that the complaining witnesses had taken a polygraph examination before charges were filed strongly reflects on the question of the defendant’s guilt or innocence, even where the results of those tests are not admitted into evidence. On the other hand, in a case such as Poliquin, where the reference to the polygraph examination concerned a coconspirator who did not even testify at defendant’s trial, the fact that a polygraph exam was administered did not in any way reflect on the guilt or innocence of the defendant. Thus, reference to the polygraph examination was not prejudicial error. In Rutledge, the testimony of the witness who had submitted to the polygraph examination was a significant .factor in establishing the defendant’s defense. Thus, the court found that any evidence casting doubt on the credibility of this witness, such as that he had refused to submit to a polygraph examination, was highly prejudicial to the defense.

Also to be considered in determining the amount of prejudice to defendant is the strength of the evidence against him. See Poliquin, 97 Ill. App. 3d 122, 421 N.E.2d 1362; Escobar, 168 Ill. App. 3d 30, 522 N.E.2d 191; Rutledge, 45 Ill. App. 3d 779, 359 N.E.2d 1233.

In the instant case, there is no doubt that witnesses King and Clutter were important State witnesses. Both strongly implicated defendant in the crime. Nothing said by King during her examination was revealed, nor was the result of that examination revealed; only the fact that she had taken the test was revealed. Witness Clutter did testify that the polygraph examiner told him that he had failed the test. Clutter also testified that he had stated during the examination that he knew nothing about the fire but then admitted his knowledge after being told he had failed the test. This evidence, however, was elicited by defense counsel in cross-examination of Clutter.

We think that the admission of this evidence did constitute error in defendant’s trial. Although defendant did not object to the admission of this evidence at trial or in his post-trial motion and in fact elicited the most damaging evidence at trial, we choose to review the alleged error under the plain error rule. As our supreme court pointed out in Baynes, the nature of polygraph evidence poses a threat to the integrity of our judicial system. It is not reliable enough to be admitted into evidence and is given undue weight by a jury. (Baynes, 88 Ill. 2d at 244, 430 N.E.2d at 1079.) One of the purposes of the plain error rule is to protect and preserve the integrity and reputation of the judicial process. (Baynes, 88 Ill. 2d at 231, 430 N.E.2d at 1072.) Thus, we will review the erroneous admission of the polygraph evidence in the case at bar to determine whether it so prejudiced defendant as to require reversal of his conviction and remandment for a new trial.

Because witnesses King and Clutter strongly implicated defendant in the crime, the issue of their credibility is an important one. However, they are not the complaining witnesses, as in York. Furthermore, with respect to King, neither the result of her examination nor her statements during that examination were admitted into evidence. The mere fact that a noncomplaining witness took a polygraph examination, where neither the result nor the substance of that examination is in evidence, does not directly reflect on the guilt or innocence of the defendant. Nor does the fact that King was a codefendant lend prejudicial effect to the evidence that she had submitted to a polygraph examination. She had already pled guilty to the same offenses with which defendant was charged. This is not a case where the jury could draw the inference that King was not being prosecuted because she had passed a polygraph examination indicating she was innocent but defendant was guilty. The mere fact that King took a polygraph examination, where neither the result nor the substance of that examination is in evidence, does not tend to enhance or destroy her credibility. Thus, we do not believe that defendant was prejudiced by the admission of evidence that King had submitted to a polygraph examination.

With respect to Clutter, we think that his testimony that he failed the examination when he denied any knowledge of the fire does tend to enhance his credibility with respect to his knowledge of the fire. However, it does not necessarily reflect on the guilt or innocence of the defendant. It only tended to show that Clutter had some knowledge, not that the defendant was guilty or innocent. To the extent it does enhance Clutter’s credibility, we do not think it prejudices defendant so as to deprive him of a fair trial. The evidence of defendant’s guilt was substantial, even overwhelming, even without considering the testimony of Clutter. Defendant had confessed his complicity to the police, and this confession was admitted into evidence. The circumstantial evidence, as well as King’s testimony, implicates defendant. We find that defendant was not prejudiced by the admission of the polygraph examination evidence with respect to King and Clutter such that he was deprived of a fair trial. Accordingly, we will not reverse his convictions on this ground.

Because we find that defendant was not prejudiced by the error, we also reject his claim of ineffective assistance of counsel based on his counsel’s failure to object, either at trial or in a post-trial motion, to the admission of the polygraph examination evidence. See People v. Albanese (1984), 104 Ill. 2d 504, 527, 473 N.E.2d 1246, 1256.

Defendant’s second argument on appeal is that one of his convictions must be vacated as both are based on the same, single act. Defendant was charged and convicted under subsections (a) and (b) of section 20 — 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, pars. 20 — 1(a), (b).) That section provides in pertinent part as follows:

“A person commits arson when, by means of fire or explosive, he knowingly:
(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or
(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.” (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.)

Arson is a Class 2 felony. The jury returned verdicts of guilty on both counts of the information, and judgment and sentence were entered on both counts of the information.

Defendant argues on appeal that one of the convictions must be vacated because both counts were based on a single act. Under People v. King (1977), 66 Ill. 2d 551, 565, 363 N.E.2d 838, 844, prejudice results to a defendant where more than one offense is carved from the same physical act. There was only one fire in the instant case, and although defendant was charged with setting that fire with two separate intents, both counts were based on the same physical act of setting fire to a chair. Thus, defendant argues, only one arson occurred, and defendant’s conviction and sentence for arson based on intent to defraud the insurance company must be vacated.

The State responds that multiple convictions based upon the same physical act are justified where there is more than one victim. In the instant case, there are two victims — the building Owners and the insurance company which insured the contents of the Music Mountain store — and therefore two convictions and sentences are justified. We find that we must agree with the State.

The defendant is correct that multiple convictions may not be based on the same physical act, at least where only one victim is concerned. The cases relied upon by defendant all involve a single physical act and a single victim. People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, involved two counts of indecent liberties (sexual intercourse and oral/genital contact) against the same victim committed in a single course of conduct. In that case, the court held that one of the convictions must be vacated because both were based on the same act. People v. Bridges (1989), 188 Ill. App. 3d 961, 545 N.E.2d 367, involved two counts of aggravated battery (against a police officer and causing great bodily harm) against the same victim committed in a single course of conduct. Again, the court held that one of the convictions must be vacated. People v. Clerk (1979), 68 Ill. App. 3d 1021, 386 N.E.2d 630, involved two counts of burglary (with intent to commit theft and with intent to commit rape) of the same building committed in a single course of conduct. The court held that only one conviction for burglary could stand. We do not quarrel with the holdings of any of these cases, but we find that they are inapposite to the case at bar, where there are two victims injured by the same physical act.

We find the cases cited by the State to be controlling of the case at bar. In People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330, two armed robbery convictions were allowed to stand where, although there was only a single transaction, the armed robbery involved two victims.

In People v. Grover (1981), 93 Ill. App. 3d 877, 417 N.E.2d 1093, defendant was convicted of three counts of reckless conduct based upon a car accident in which three separate victims were injured. In that case, defendant argued that he could be convicted of only one offense because there was a single act of driving. The court rejected defendant’s argument, finding that the rationale of People v. King was inapposite as it was directed and limited to acts committed to a single victim. Thus, more than one offense may exist where multiple victims are injured by a single act. Quoting People v. Ellington (1972), 7 Ill. App. 3d 72, 73, 286 N.E.2d 367, 368, the court held that, where two or more persons are injured as a result of a single act, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses for which an accused may be convicted. (Grover, 93 Ill. App. 3d at 880, 417 N.E.2d at 1096.) In People v. Davis (1982), 105 Ill. App. 3d 129, 135, 434 N.E.2d 13, 17, the court held that separate victims require separate sentences, even though there was only one physical act committed by defendant.

The arson statute provides for two different forms of arson, one which injures the building owner and another which injures an insurance company. The statute is thus intended to protect two different victims, and where, by setting a fire, a defendant injures both victims, we find that he may be charged, convicted and sentenced for two separate offenses. We find nothing in the language of the arson statute itself which leads to a different conclusion.

We are not unaware of the decision in People v. Bostick (1978), 60 Ill. App. 3d 581, 377 N.E.2d 146, which held that, where a defendant was charged with arson under both subsections (a) and (b) of the arson statute based upon a single act of setting one fire, as in the instant case, only one conviction could stand. The Bostick court held that, under People v. King, more than one offense may not be carved out of a single physical act. However, the court in Bostick did not discuss the Butler case, in which it was held that more than one offense may be carved from a single physical act where more than one victim is injured by that act. Thus, we decline to follow the holding in Bostick, finding it to be contrary to existing law and incorrect in its holding.

Because we find multiple victims in the instant case, we uphold both of defendant’s convictions for arson based on the single act of setting fire to the Music Mountain store.

Defendant’s final argument on appeal is that his sentences of four years’ incarceration are excessive in light of his potential for rehabilitation and in light of his codefendant’s lesser sentence. Defendant’s sentencing hearing was held on June 26, 1991. The court received and considered a presentence investigation report prepared by the probation department. That report indicates that defendant is 32 years of age and has been married to Beth since 1979. They were separated from June to December 1990. They have three children, ages 11, 9 and 4 years. Defendant has a GED and is employed as a carpet installer earning $5.50 per hour. Beth is unemployed. Defendant’s criminal record consists of convictions for violation of curfew, unlawful possession of cannabis and deceptive practice. Defendant’s codefendant, Diana King, was sentenced to three years’ imprisonment and ordered to pay restitution in the sum of $1,000.

The State presented no evidence in aggravation. Defendant presented evidence in mitigation. Bruce Szachnitowski testified that he has known defendant for years. Defendant appears to be a good father to his children and spends more time with the children than their mother does. The witness has never known defendant to be violent or unruly. Defendant has been working hard at renovating his home.

Gerald Marsland testified that he employs defendant as a carpet installer. He and defendant are neighbors and have been good friends for five to six years. Defendant has been a good neighbor and friend. Defendant is also a good employee and may continue to work for Marsland if he remains in the community. Defendant is a good family man.

Defendant’s wife, Beth, testified that she and defendant have been married 12 years. During their separation, defendant retained custody of the children because he is the more stable parent. Defendant is a good father, and his removal from the family will create emotional and financial difficulties. Defendant has been renovating their home, and the work is not yet completed. Beth needs defendant at home to help with work around the house.

Defendant’s mother, Beverly Robison, testified that defendant is a good father and cared for the children when their mother was unable or unwilling. Defendant has been working hard at renovating his home.

Defendant testified in his own behalf that he was remorseful over the crime, accepted the verdict of the jury, and would never repeat the crime. Defendant would comply with the terms of probation.

The State argued that defendant was the prime motivator behind the crime, that his actions caused and threatened serious harm, that unlike his codefendant, King, defendant does have a history of criminality, and that a sentence of imprisonment is necessary to deter others from committing the same offense. Because King had cooperated with the State, the State recommended for her a sentence of three years’ imprisonment. With respect to defendant, the State recommended a sentence of four years’ imprisonment and restitution.

Defendant argued that he should not receive a greater sentence than his codefendant simply because he had exercised his right to trial. Diana King was at least as culpable as defendant. Furthermore, defendant is the primary supporter of his family. Defendant should receive a lesser sentence than his codefendant. Defendant asked that he be given probation and be ordered to pay restitution.

The court pointed out that defendant was the one who actually set the fire and had attempted to set the fire on two previous occasions. The offense of arson is a very serious one, and the instant offense endangered lives and livelihoods. Furthermore, imprisonment was necessary so as not to deprecate the seriousness of the offense. Because defendant actually set the blaze, the court sentenced him to four years’ imprisonment and restitution.

On July 12, 1991, defendant filed a motion to reduce his sentence. The motion was heard July 24, 1991, and denied.

Defendant argues that his sentence is excessive in light of his potential for rehabilitation and in light of the fact that his codefendant received a lesser sentence although she was just as culpable as defendant. He asks that we reduce his sentence to the minimum term of imprisonment of three years pursuant to the power granted us by Supreme Court Rule 615(b). (134 Ill. 2d R. 615(b).) Finding no abuse of discretion by the sentencing court, we decline to do so.

The imposition of sentence is a matter of judicial discretion, and absent an abuse of that discretion, the sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) This is because the trial judge is normally in a better position to determine the punishment to be imposed than a court of review, and a trial judge’s decisions in regard to sentencing are entitled to great deference and weight. Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.

In the instant case, it does not appear that the trial judge considered improper factors or that he failed to consider any of the mitigating factors and circumstances presented to him. To the contrary, the record reveals that the sentencing court was presented with a great deal of evidence concerning the defendant’s history, character and potential for rehabilitation and considered it all. The sentence imposed is only one year above the minimum allowable sentence of three years’ imprisonment and is below the maximum allowable sentence of seven years’ imprisonment. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1.) It is therefore within the range of allowable sentences. We find no indication that the sentencing court failed to take into account all mitigating factors, including defendant’s potential for rehabilitation, in imposing sentence.

A sentencing court need not recite and assign value to each factor in mitigation upon which it is relying, and the existence of mitigating factors does not automatically obligate the court to reduce the sentence from the maximum or to impose the minimum sentence. (People v. Powell (1987), 159 Ill. App. 3d 1005, 1011, 512 N.E.2d 1364, 1368.) Furthermore, where, as here, the sentencing court examines the presentence report, it is presumed that the court took into account the defendant’s potential for rehabilitation. (Powell, 159 Ill. App. 3d at 1011, 512 N.E.2d at 1368.) In the instant case, the court found in aggravation that it was defendant who actually started the fire, and the court considered this strongly in imposing a four-year sentence of imprisonment.

Defendant also argues that his sentence is unfair when compared to that of his codefendant and'therefore should be reduced to that received by his codefendant. We note that although there is a disparity in sentences received by the two codefendants, that disparity is not great, the defendant having received a sentence of four years’ imprisonment and King having received a sentence of three years’ imprisonment.

Defendant correctly points out that fundamental fairness and respect for the law require that defendants similarly situated not receive grossly disparate sentences. (People v. Bares (1981), 97 Ill. App. 3d 728, 738, 423 N.E.2d 538, 545.) When determining whether a sentence is excessive in light of a lesser sentence imposed on a codefendant, consideration is to be given to the differences in criminal background and the degree of participation by each defendant in the commission of the offense. (People v. Martin (1980), 81 Ill. App. 3d 238, 245, 401 N.E.2d 13, 18.) A disparate sentence may be supported by either a more serious criminal record or greater participation in the offense. (Martin, 81 Ill. App. 3d at 245, 401 N.E.2d at 18.) A greater sentence may be imposed upon a defendant who has been determined to be a leader or instigator in the commission of an offense. Martin, 81 Ill. App. 3d at 246, 401 N.E.2d at 19.

In the instant case, the record shows that defendant had a more serious criminal record. King apparently had no prior convictions, while defendant had been convicted of several offenses, although none of them involved violence or bodily harm. Furthermore, the trial court found that defendant was more culpable than King for, although the arson was originally King’s idea, it was defendant who pushed the idea, actually attempted two times to start a fire, and finally did start the arson fire. Based on the record before us, we cannot say that the trial court’s findings in this regard are against the manifest weight of the evidence. We think these differences are sufficient to support the slightly greater sentence received by defendant.

Furthermore, it is proper for a trial court to grant leniency in sentencing a defendant who by his plea ensured prompt and certain application of correctional measures to him, acknowledged his guilt and showed a willingness to assume responsibility for his conduct, and cooperated in the successful prosecution of other offenders. (People v. Bergman (1984), 121 Ill. App. 3d 100, 105-06, 458 N.E.2d 1370, 1375.) We find no indication in the record that the greater sentence imposed upon defendant was imposed as a penalty for defendant’s assertion of his right to trial. We think defendant’s sentences were based on the sentencing court’s due consideration of proper factors, including his potential for rehabilitation, and we find no abuse of discretion in the sentences imposed.

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

Affirmed.

JUSTICE WILLIAM A. LEWIS,

specially concurring:

I agree with the reasoning and finding of the majority opinion, but I feel compelled to make some additional comments.

John Clutter testified that the defendant told him how to pass the test and promised him a leather jacket if he beat the test. “Testimony is relevant and admissible that relates to any attempt by a party to conceal or, by threat or otherwise, to suppress evidence or otherwise obstruct an investigation.” (People v. Gacho (1988), 122 Ill. 2d 221, 247, 522 N.E.2d 1146, 1158.) Surely the evidence that defendant was attempting to bribe a witness and instructed him as to how to stymie the State’s investigation indicates a guilty conscience and constitutes an admission. People v. Gambony (1948), 402 Ill. 74, 80, 83 N.E.2d 321, 325, cert. denied (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1045.

If we found that Clutter’s testimony warranted a reversal, we would be establishing an exception to the rules of evidence. Evidence that is admissible as an admission, prior inconsistent statement, proof of notice or under any other evidentiary rule becomes inadmissible if the words “polygraph or lie detector” are used or involved in describing the occurrence.

Diana King merely mentioned “the man that gave the lie detector test” as being present during a second interview by the police and further mentioned the lie detector test during cross-examination by the defense in establishing a chronology of the various interviews with the police. If we reverse this case based upon the fact that the magic words “polygraph or lie detector test” were mentioned, then we would be creating the nightmare that exists in tort cases with the mention of the magic word “insurance.”

The polygraph test may be unreliable, but it is an important investigatory tool for the police, especially in the elimination of innocent persons from the investigation or suspicion. We should not create potential reversible error in every case that the polygraph is used, unless its use clearly prejudices the defendant and interferes with the integrity of the judicial process. In this case the evidence was overwhelming against the defendant, so a reversal merely causes a retrial for no other purpose than to see if the prosecutor can coach or “woodshed” his witnesses sufficiently not to violate the rules of the game by mentioning those horrible words “polygraph or lie detector.” Meanwhile, defense counsel’s only hope is a mistrial and it becomes very tempting for counsel to lure the State’s witnesses into the trap. The question of guilt or innocence becomes lost in this game of technicalities.

Finally, I feel that we sometimes fail to give jurors credit for having some intelligence and knowledge. Surely jurors are aware that the polygraph machine exists and that police use it in investigating cases. They may even be aware that such “lie detector tests” are unreliable. Even if the jurors are not aware of the unreliability of polygraph tests, would not a simple instruction from the court to- that effect be sufficient to cure any prejudice in those cases where the results are not given to the jury but witnesses mention taking the tests in their testimony?

JUSTICE CHAPMAN,

dissenting:

I cannot agree that reference to the polygraph was harmless. The polygraph evidence was admitted through the testimony of John Clutter and Diana King, and portions of that evidence directly concerned the defendant. Although testimony that a coconspirator had taken the polygraph examination does not mean defendant had either taken or failed the test (People v. Poliquin (1981), 97 Ill. App. 3d 122, 132, 421 N.E.2d 1362, 1370), given the circumstances of this case the implication that defendant had taken the test was put before the jury. John Clutter’s testimony that defendant informed him how to pass the test and that polygraph examinations were easy suggests that defendant had taken the test. There is also the logical implication that because defendant advised Clutter how to take the test, it was defendant who advised him to state during the examination that Clutter knew nothing about the fire.

The problem in this case is that we have no way of knowing the extent to which the jury was affected by the knowledge of the polygraph examinations and the reasonable inferences flowing from the polygraph testimony. (See People v. Yarbrough (1982), 93 Ill. 2d 421, 426, 444 N.E.2d 493, 495.) While the effect upon the jury of the polygraph evidence may have been subtle and unconscious, it was at the same time potent. People v. Taylor (1984), 101 Ill. 2d 377, 393, 462 N.E.2d 478, 485.

The polygraph evidence in this case went beyond a demonstration of the fact that the witnesses had taken a polygraph and the results of their exams. Subtle suggestions that the defendant had taken a polygraph were admitted. Further, there was an implication of defendant’s guilt when Clutter testified that the defendant advised him how to pass the examination. The supreme court has held that the prejudicial effect of polygraph evidence substantially outweighs its probative value because no other form of evidence is as likely to be considered as completely determinative of guilt or innocence as a polygraph examination. (People v. Baynes (1981), 88 Ill. 2d 225, 244, 430 N.E.2d 1070, 1079.) The use of the polygraph evidence in this case necessarily interfered with the integrity of the judicial process, and its use requires reversal regardless of the weight of the other evidence. See People v. Thomas (1984), 123 Ill. App. 3d 857, 867, 463 N.E.2d 832, 840.


source: Caselaw Access Project

author: JUSTICE WOODWARD JUSTICE STOUDER,

license: Public Domain

text:
    REINHOLD KLEIBOEKER, Appellee and Cross-Appellant, v. THE INDUSTRIAL COMMISSION et al. (Richter Construction Company, Appellant and Cross-Appellee).
    Fifth District (Industrial Commission Division)
    No. 5—90—0724WC
    Opinion filed October 29, 1992.

      STOUDER, J., dissenting.
    Michael E. Rusin, of Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellant.
    James McGlynn, of McGlynn & McGlynn, of Belleville, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Reinhold Kleiboeker, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). The matter was heard on January 21, 1985, by an arbitrator who determined that, as a result of injuries arising out of and in the course of claimant’s employment with respondent (Richter Construction Company), he was temporarily totally disabled for a period of Gl1/? weeks, and that he was permanently disabled to the extent of 30% under section 8(d)(2) of the Act. In a decision dated May 1, 1990, the Industrial Commission (Commission) affirmed the arbitrator’s decision and awarded $12,872.65 for reasonable and necessary medical expenses. The Commission denied claimant’s claims for additional compensation under sections 19(k) and 19(l) (Ill. Rev. Stat. 1979, ch. 48, pars. 138.19(k), (l)), as well as attorney fees. The Commission found that there was a legitimate question whether claimant’s condition of ill-being was related to his work injury.

Thereafter, claimant applied for judgment pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) in the circuit court of Marion County. In an order dated October 2, 1990, the court below granted claimant’s application and awarded him $18,467.86 in attorney fees. The court also awarded claimant $3,440 in interest under the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303) from May 15, 1990, to October 2, 1990, plus an additional $119.28 in section 19(n) interest for 14 days. This appeal followed.

Respondent argues that the section 19(g) application should be dismissed, and the Code interest and attorney fees awards reversed. Claimant cross-appeals, contending that section 19(n) of the Act unconstitutionally establishes a lower rate of interest on arbitrators’ awards than other awards within this State and that section 19(n) unconstitutionally provides for a unilateral burden upon a worker’s appeal to the Commission.

First, we address the issues raised by respondent, who first argues that claimant’s section 19(g) application was insufficient, failed to comply with the law and, therefore, should have been dismissed by the trial court. Section 19(g) reads in pertinent part as follows:

“Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect, be entered and docketed. ***
Judgment shall not be entered until 15 days’ notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).

From the record before us, we relate the following pertinent facts. The decision and opinion on review of the Commission was dated May 1, 1990. On June 11, 1990, claimant gave notice of his intention to make an application for entry of judgment to the Commission and to Becky Merrick of State Farm Insurance, Bloomington, Illinois, respondent’s insurer. No such notice was sent directly to respondent or to its attorney(s).

' On June 28, 1990, pursuant to section 19(g), claimant made application with the circuit court for entry of judgment upon the Commission’s final decision. On June 29, 1990, claimant’s attorney sent Becky Merrick of State Farm Insurance a copy of the application filed with the circuit court. On July 3, 1990, respondent tendered payment, but claimant rejected same because it was untimely and it did not properly calculate the section 19(h) and Code interest. On July 5, 1990, respondent filed its objections to the application and, in the alternative, moved to dismiss the application. On July 9, 1990, respondent filed additional objections to the application. The court heard argument on July 10, 1990, and issued its order on October 2, 1990, wherein it granted claimant’s application.

First, respondent argues that the application is deficient because it fails to show that the Commission’s decision is final. Respondent contends that there is nothing in claimant’s application to show when the decision was served on or received by respondent. Respondent goes on to argue that, absent service, the Commission’s decision is never final. This contention is without merit.

First, we note that the record clearly indicates that respondent litigated this matter before the arbitrator and the Commission and consequently was on notice of the Commission’s final decision. Further, the relevant statutory language reads that “either party may present a certified copy *** of the decision of the Commission when the same has become final.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).) The statute says nothing about the parties’ receipt of the Commission’s decision as a condition precedent to its becoming final. Moreover, the statute does not require claimant to allege and prove the respondent’s receipt of the Commission’s decision. Further, we note that respondent does not argue that it did not receive the Commission’s decision in timely fashion. It merely contends that claimant has the burden of proving its receipt of the Commission’s decision and that he did not meet same.

Respondent next argues that claimant failed to comply with that part of section 19(g) which states in pertinent part:

“Judgment shall not be entered until 15 days’ notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.” (Emphasis added:) Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).

The record demonstrates claimant’s full compliance with the statute. On June 11, 1990, claimant’s attorney sent the Commission a notice of his intention to make an application with the circuit court of Marion County for the entry of judgment upon the Commission’s final decision. The notice stated that a copy of it was sent to Becky Merrick of State Farm’s Bloomington, Illinois, office. (Ms. Merrick is apparently not an attorney but rather a State Farm employee.) Accompanying said notice was a cover letter addressed to the Commission at its Chicago address with a carbon copy of same to Ms. Merrick. Both bear the Commission’s file stamp of June 13, 1990. Under the statute, it was then the Commission’s task to forward said notice to respondent or its attorney. There is no question that claimant followed section 19(g)’s directives. Accordingly, we find that claimant’s application was not deficient and, therefore, is properly before us.

Respondent asserts that Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, is relevant to this issue. We disagree. In Evans, petitioner filed a section 19(g) application in the circuit court but failed to attach a certified copy of the Commission’s decision. The Evans court found that the failure of petitioner to file a certified copy left the circuit court without jurisdiction. There is no such deficiency here. Claimant presented a certified copy of the Commission’s decision in its section 19(g) application. Thus, Evans is inapposite.

Next, respondent argues that a judgment should not have been entered by the trial court because it made a full tender of the award to claimant. As noted above, claimant’s notice of application was filed with the Commission on June 13, 1990. Claimant filed his application for entry of judgment in the trial court on June 28, 1990. On July 3, 1990, respondent tendered payment for the full amount awarded by the Commission. Claimant refused said tender as untimely and insufficient.

Respondent argues that a complete tender is a complete defense to an application for judgment. (Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41.) In response, claimant cites the following language in Ballard:

“Full payment or tender of full payment of a final award is a complete defense to an application for judgment under section 19(g), but if anything is properly due the employee after the final award at the time the application for judgment is made, the circuit court should enter judgment as provided in section 19(g).” (Emphasis added.) 172 Ill. App. 3d at 46.

Citing no authority, respondent argues that a judgment should not be entered where payment is tendered before the application is presented for entry. Respondent further maintains that payment was “not unreasonably delayed.” As the trial court stated, the import of the relevant cases is that an employer must act quickly after a Commission’s decision. Here, respondent was obviously making no effort to pay the award to which claimant was entitled and was only goaded into action by the claimant’s application for entry of judgment.

In this case, claimant filed an application for entry of judgment pursuant to section 19(g) of the Act almost two months after the decision of the Commission on May 1, 1990, was entered. On June 11, claimant’s attorney sent the Commission a notice of his intention to make an application for judgment. On July 3, 1990, more than 60 days after the Commission’s decision became final, respondent made a tender of the total amount due under the Commission’s decision. On July 10, 1990, a judgment was entered by the trial court which awarded attorney fees in the amount of $18,467.86, in addition to the amount of the compensation award and interest.

In Wirth v. Industrial Comm’n (1976), 63 Ill. 2d 237, a tender was made of the full amount of the award within 60 days of the issuance of the supreme court’s mandate remanding the cause for entry of the judgment based upon the arbitrator’s award. The claimant then sought attorney fees pursuant to section 19(g) of the Act. The circuit court denied the request for attorney fees but awarded interest from the date of the supreme court’s mandate. In interpreting section 19(g), the supreme court stated:

“Our examination of the record leads us to conclude that the delay resulted from the dispute concerning respondent’s liability for interest and not from a refusal to pay compensation within the contemplation of section 19(g) of the Workmen’s Compensation Act.” (Emphasis added.) (63 Ill. 2d at 242.)

The supreme court in the above case had no problem interpreting section 19(g) under the facts of that case that an award of attorney fees was not required because the delay in making payment resulted from a dispute concerning the respondent’s liability for interest.

In Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, an award of the Commission became final on July 24, 1989. On August 15, 1989, an application for judgment was filed pursuant to section 19(g). At the time the application was filed, the respondent had not paid the amount of the award. Claimant did acknowledge that after the filing of the application and after service was made, the respondent sent a check for the amount of the award. Nevertheless, claimant claimed that he was entitled to attorney fees under section 19(g). In Evans, the court stated:

“Here, the record does not affirmatively establish that the respondent ever refused to pay the award so that petitioner was compelled to incur additional expenses.” (207 Ill. App. 3d at 303.)

The above statement was dicta in view of the fact that the court found the circuit court was without jurisdiction. Evans is easily distinguishable from the appeal at bar, where there is no issue as to jurisdiction, as a certified copy of the Commission’s decision was timely filed as required by the statute. Similarly, Pierce v. Tee-Pak, Inc. (1990), 196 Ill. App. 3d 544, and Aper v. National Union Electric Corp. (1988), 165 Ill. App. 3d 482, also cited by respondent, are inapposite, as neither involves a situation in which the employer has refused to pay claimant’s award.

In this cause, there was no dispute nor was there any absence of jurisdiction as found in the Wirth and Evans cases. Respondent made no effort to pay the award to which the claimant was entitled until after claimant had filed an application for judgment. There was no dispute concerning the liability of respondent to pay compensation and interest. The language of section 19(g) appears to be mandatory, and here the respondent made a tender only after claimant’s application for entry of judgment had been made. The claimant properly proceeded under section 19(g); however, the Act itself provided that notice for application for judgment to the respondent was to be given by the Commission; in this case, the Commission did not send a notice promptly, although a copy was mailed to an employee of the respondent’s insurance company. An award of attorney fees is required under these facts pursuant to section 19(g), but said award should be in a fair and reasonable amount.

In view of the facts and circumstances of this case, particularly in view of the fact that the Commission did not promptly send a notice of claimant’s intention to apply for a judgment, the award of $18,467.86 for attorney fees is far out of proportion to any sanction or penalty that should be awarded against the respondent under these facts. Accordingly, this cause is remanded to the circuit court for hearing on the reasonable expenses and reasonable attorney fees incurred with respect to the section 19(g) proceedings in the circuit court of Marion County.

Next respondent argues that the trial court should not have awarded Code interest because no compensation accrued after the arbitrator’s decision. The trial court awarded Code interest at a rate of $24.96 a day from May 15, 1990, to the date it entered the judgment order, October 2, 1990.

It is now well settled that section 2 — 1303 interest (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303) is available for section 19(g) judgments. (Bray v. Industrial Comm’n (1987), 161 Ill. App. 3d 87; Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41.) As stated in Bray, recognizing the availability of Code interest in section 19(g) judgments achieves “the Act’s objective of providing employees with quick and efficient compensation for injuries. Interest accruing on awards ensures that employers have nothing to gain by delaying payment without cause. Interest payments also further the Act’s objective of prompt compensation by ensuring that the employee begins benefit-ting from the award upon the *** Commission’s decision, even if the employee does not actually receive payment until later.” (161 Ill. App. 3d at 96-97 (Barry, J., specially concurring).) Under the relevant case law, the trial court properly awarded claimant Code interest for the subject period.

Finally, claimant cross-appeals, arguing that section 19(n) is unconstitutional. After sifting through claimant’s various assertions, we conclude that he is making an equal protection argument.

Prior to the 1984 amendment, section 19(n) stated:

“All decisions of the Industrial Commission confirming or increasing an award entered by an arbitrator of the Commission shall bear interest at the rate of 6% per annum from the date of the arbitrator’s award on all compensation accrued. However, the employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” Ill. Rev. Stat. 1983, ch. 48, par. 138.19(n).

Following amendment, section 19(n) provides:

“After June 30, 1984, decisions of the Industrial Commission reviewing an award of an arbitrator of the Commission shall draw interest at a rate equal to the yield on indebtedness issued by the United States Government with a 26-week maturity next previously auctioned on the day on which the decision is filed. Said rate of interest shall be set forth in the Arbitrator’s Decision. Interest shall be drawn from the date of the arbitrator’s award on all accrued compensation due the employee through the day prior to the date of payments. However, when an employee appeals an award of an Arbitrator or the Commission, and the appeal results in no change or a decrease in the award, interest shall not further accrue from the date of such appeal.
The employer or his insurance carrier may tender the payments due under the award to stop the further accrual of interest on such award notwithstanding the prosecution by either party of review, certiorari, appeal to the Supreme Court or other steps to reverse, vacate or modify the award.” Ill. Rev. Stat. 1985, ch. 48, par. 138.19(n).

Claimant points out section 19(n) provides that if the employee appeals or cross-appeals from an arbitrator to the Commission and his appeal is unsuccessful, i.e., results in no change or a decrease in the arbitrator’s award, he forfeits interest accrued during the pendency of his appeal or cross-appeal. This is a precondition to workers’ appeals and is stated proforma at the conclusion of each arbitrator’s award. Claimant asserts that because the statute makes no provision for any precondition on the employer’s appeal, it establishes a unilateral and unconstitutional burden upon the employee.

We note that equal protection challenges to the Act have been frowned upon by courts of review. In Arnold v. Industrial Comm’n (1960), 21 Ill. 2d 57, claimant contended that the Act denied him equal protection because as a nonresident, he was denied benefits that a resident would be entitled to. The Arnold court wrote:

“There is no merit in the contention. The constitutional guaranty of equal protection of the laws is designed to prohibit only discriminations that are arbitrary. It does not prevent a State from adjusting its legislation to differences in situation, so long as the classification is based on a difference having a rational relation to the subject of the particular legislation. [Citations.] The Workmen’s Compensation Act is designed ‘to promote the general welfare of the people of this State,’ and a requirement that the employment relationships to be covered thereby have a substantial connection with this obviously bears a rational relation to the subject of the act.” 21 Ill. 2d at 63.

In Cole v. Industrial Comm’n (1988), 166 Ill. App. 3d 486, claimant maintained that the denial of a full hearing on appeal of section 19(b — 1) proceedings unconstitutionally violated her rights to equal protection and due process. The Cole court stated:

“[Claimant has not established she was denied equal protection. Statutes and rules may differentiate between persons similarly situated as long as the classification bears a reasonable relationship to a legitimate purpose. [Citation.] Claimant is not a member of a ‘suspect classification’ and *** there is a rational basis for distinguishing between review of regular applications for adjustment of claim and section 19(b — 1) proceedings.” 166 Ill. App. 3d at 491.

Moreover, this court has already examined the legislative intent behind the 1984 amendment to section 19(n). In Hughes v. Industrial Comm’n (1990), 196 Ill. App. 3d 143, we stated:

“Our review of the legislative history surrounding this [1984] amendment reveals intent on the part of the legislature to alter the meaning of this provision insofar as it relates to the sums upon which interest is computed. Rather, the amendments to section 19(n) were intended merely to decrease the interest rate applicable to those sums. Furthermore, the amendments to section 19(n), together with the other amendments made to the Act by Public Act 83 — 1125, were intended to save the employer community an estimated $U0 million per year." (Emphasis added.) (196 Ill. App. 3d at 147.)

Thus, the goal of the 1984 amendment was to improve the State’s economic environment which would benefit both the employers and employees.

Under the rational basis test for whether a statute violates equal protection, the court simply inquires into whether the means employed by the statute to achieve the legislation’s purpose are rationally related to said purpose. (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54.) We find the 1984 amendment to section 19(n) is rationally related to the goal stated above. It balances the needs of both employer and employee, while not restricting the latter’s access to the administrative process. Consequently, we reject claimant’s contentions and hold that section 19(n) is not violative of his equal protection rights.

For the reasons stated above, the judgment of the circuit court is affirmed except that this cause is remanded to the circuit court for the purpose of taking evidence and determining reasonable expenses and reasonable attorney fees incurred with respect to the section 19(g) petition and proceedings in the circuit court as hereinbefore provided.

Affirmed and remanded.

McCULLOUGH, P.J., and RAKOWSKI and H. LEWIS, JJ., concur.

JUSTICE STOUDER,

dissenting:

I find the award of attorney fees and costs unjustified under the facts of the instant case. Section 19(g) provides in pertinent part: “In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered ***.” Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).

The time period involved in this case was relatively short. The Commission rendered its decision on May 1, 1990, and the amount of the award was tendered July 3, 1990. I note that notice of the intention to bring a section 19(g) action was not sent to the respondent or its attorney until sometime after June 13, 1990, and that the award was paid within six days of the actual filing of the section 19(g) action. In fact, notice of the filing was not received by State Farm, the insurer, until July 5, 1990, two days after State Farm tendered payment.

I also find the record fails to demonstrate a refusal to pay on the part of the respondent. Inquiries by an attorney, without more, do not in and of themselves reveal a refusal to pay compensation — especially given the short time frame involved here. In addition, it is the insurance carrier who is processing the payment of the claim, and this of necessity takes a certain amount of time. I fail to see how the insured can be held accountable for delays resulting from the normal operations of its insurance carrier.

I also find Evans v. Corporate Services (1990), 207 Ill. App. 3d 297, 565 N.E.2d 724, is not distinguishable. In Evans, the respondent tendered payment within 2V2 months of the Commission’s decision and shortly after the section 19(g) application was filed. The Evans court, in dicta, stated it would be unfair and unreasonable not to afford a reasonable time to the respondent to make payment. The same holds true in this case. Therefore, I believe the judgment granting attorney fees and costs should be reversed.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE STATEN, Defendant-Appellant.
    Fifth District
    No. 5—91—0312
    Opinion filed November 2, 1992.
    Rehearing denied December 3, 1992.

      Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Norbert J. Goetten, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Randolph County, defendant, Maurice Staten, was found guilty of unlawful possession of a weapon by a person in custody of a Department of Corrections facility (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1) and sentenced to a 10-year term of imprisonment. He now appeals (134 Ill. 2d R. 606(b)), arguing, inter alia, that the State failed to try him within 160 days of his written demand for a speedy trial. We agree and therefore reverse.

Defendant is an inmate at the State prison in Menard, where he is serving a 20-year sentence for home invasion and armed robbery. In February of 1990, prison guards observed him placing a homemade weapon into a trash container as he was going to breakfast. The weapon consisted of a plastic ball-point pen whose ink cartridge had been replaced by a section of wire coat hanger with a sharpened point. Guards retrieved this weapon and, following a hearing, defendant was subjected to administrative discipline by the institution. Thereafter, the matter was forwarded to the local State’s Attorney, who brought the criminal charge which ultimately gave rise to this appeal.

The information charging defendant was filed on September 24, 1990. Defendant’s court-appointed attorney formally entered his appearance the following week, at which time he also entered a not guilty plea on behalf of defendant, asked for a substitution of judge, made a routine discovery motion and demanded a jury trial. The jury demand, which was mailed to the State’s Attorney on October 1, 1990, and filed by the clerk of the court two days later on October 3, 1990, specifically invoked the provisions of section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b)), commonly referred to as the Speedy Trial Act. That statute applied to defendant by virtue of section 3 — 8—10 of the. Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10) and required the State to bring defendant to trial within 160 days of the date his jury demand was filed “unless the delay [was] occasioned by the defendant.” People v. Duckmanton (1985), 137 Ill. App. 3d 465, 467, 484 N.E.2d 942, 943.

The 160-day statutory time period was not met here. It expired on March 12, 1991. Defendant, however, was not tried on the weapons possession charge until March 18, 1991, six days later. Accordingly, defendant is entitled to be discharged with respect to that offense (People v. Wiseman (1990), 195 Ill. App. 3d 1062, 1064, 553 N.E.2d 46, 48), and the charge must be dismissed (Ill. Rev. Stat. 1989, ch. 38, par. 1003-8-10).

The State attempts to avoid this conclusion by arguing that defendant’s speedy trial demand was insufficient because it did not include “a statement of the place of present commitment, the term, and length of the remaining term, the charges pending against him or her to be tried and the county of the charges” as section 3 — 8—10 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003— 8 — 10) requires. We acknowledge that such a statement was not, in fact, included in defendant’s demand. We also note, however, that strict compliance with technical formalities has never been required in this State to make a speedy trial demand effective. (See, e.g., People v. Adams (1982), 106 Ill. App. 3d 467, 471, 435 N.E.2d 1203, 1207 (“no magic words are required to constitute a speedy trial demand”).) To the contrary, the rule is that the speedy trial statute is to be construed liberally so as to give effect to the constitutional right to a speedy trial, and in determining whether the statute has been met, each case is to be decided on its own facts. (People v. Smith (1991), 207 Ill. App. 3d 1072, 1074, 566 N.E.2d 797, 798.) In our view, these principles apply with equal force where, as here, the speedy trial demand is subject to the provisions of section 3 — 8—10 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10).

Although we have found no authority directly on point, we believe that the statement requirement in section 3 — 8—10 (Ill. Rev. Stat. 1989, ch. 38, par. 1003 — 8—10) was designed to enable counties to more easily locate and obtain for trial prisoners committed to the Illinois Department of Corrections so that those prisoners may obtain a speedy disposition of the charges against them. (See People v. Hood (1991), 223 Ill. App. 3d 157, 159, 583 N.E.2d 1173, 1175 (construing analogous provisions of the Interstate Agreement on Detainers).) In this case, however, that was not a problem. The State knew that defendant was incarcerated in a Department of Corrections facility. After all, the fact of his incarceration was an element of the very offense with which he was charged. Moreover, the State knew exactly where defendant was incarcerated, for even before his lawyer had entered an appearance, the State had procured an order for habeas corpus ad prosequendum, directing the warden at Menard to produce defendant for trial in this case. Under these circumstances, requiring defendant’s jury demand to include the specified statement as to the circumstances of his incarceration and the charges against him would have been a meaningless formality.

Equally untenable is the State’s complaint that defendant’s speedy trial demand was not addressed to the Randolph County State’s Attorney. It is true that the demand was filed with the clerk of the circuit court. While that, alone, was not sufficient to place the State on notice of the filing (People v. Lendabarker (1991), 215 Ill. App. 3d 540, 552, 575 N.E.2d 568, 575, cert. denied (1992), _ U.S. _, 118 L. Ed. 2d 208, 112 S. Ct. 1561), the record also shows that the demand contained on its face a “proof of service” certifying that a copy of it was mailed to the State’s Attorney on October 1, the same date the original was sent to the clerk for filing. Also mailed to the State’s Attorney on October 1 was defendant’s motion for discovery. That motion clearly reached the State’s Attorney by October 3, for the State’s Attorney was able to file his response to the motion that very day. There is no reason to believe that the speedy trial demand reached the State’s Attorney at any different time. Under these circumstances we must conclude that defendant’s speedy trial demand was effectively served on the State’s Attorney no later than the October 3 filing date. See 215 Ill. App. 3d at 552, 575 N.E.2d at 575.

The State next argues that the delay in bringing defendant to trial was attributable to a pretrial motion by defendant to quash the information based on double jeopardy. There is nothing in the record to support this claim. The motion was drafted by defendant, not his attorney, and there is no indication that it did anything but sit in the file until January 28, 1991, when the case was originally set for trial. At that time it was argued in a cursory fashion and summarily denied by the court, which indicated in its remarks that it regarded the issues raised therein as routine. Under these circumstances, attributing any delay to the motion would be a complete fiction.

If the record does show anything, it is that the case was headed for trial unimpeded by any delay by any party on the original January 28 trial date. On that date both sides appeared and announced that they were ready to proceed. Because this was only the 117th day following defendant’s speedy trial demand, everything would have been fine had the case actually gone to trial at that time, and an attempt was, in fact, made to go forward. According to the court’s docket minutes, jury selection was begun. The problem was that not enough jurors were available. After only 10 individuals were selected, the panel was exhausted. The circuit judge was left with no choice but to call the proceedings off until another time. Declaring what he referred to as a “mistrial,” the judge excused everyone and reset the case for the court’s next jury setting, which was March 18. The defendant had no responsibility whatever for this delay for, as we have recently noted, it is not a defendant’s responsibility to have sufficient jurors available for his trial. People v. Smith (1991), 207 Ill. App. 3d 1072, 1078, 566 N.E.2d 797, 801.

The State nevertheless argues that defendant is precluded from complaining of the delay because his attorney agreed to it. In support of this claim the State notes that after the court announced that a jury could not be picked, the judge asked defense counsel if he wanted the case continued to the March jury docket, to which defense counsel responded by saying, “Thank you, your Honor.” We note, however, that defense counsel was given no real alternative if he wanted his case heard by a jury, for the court had just informed the State’s Attorney that no additional jurors could be summoned to complete the jury they were then attempting to assemble. Of course, defendant could presumably have opted to proceed without a jury and so have gone to trial before the next jury setting in March, but we know of no principle of law which requires a defendant to forego his constitutional right to a trial by jury in order to preserve his right to a speedy trial within the statutorily mandated period.

When the case was eventually called for trial again on March 18, it was in no sense a continuation of the aborted January 28 proceeding. The jury selection process was begun completely anew. Accordingly, as in the case of People v. Perkins (1980), 90 Ill. App. 3d 975, 978, 414 N.E.2d 110, we do not believe that this aborted January proceeding was in any sense a “beginning of the process” of selecting a jury so as to satisfy the speedy trial statute under our supreme court’s holding in People v. Williams (1974), 59 Ill. 2d 402, 320 N.E.2d 849. To be sure, if the circuit court had realized the speedy trial problem occasioned by its decision to reset the case for March, it may have embarked on a different course of action. As we have held, however, it was not the defendant’s duty to inform the court that the new date set for trial would result in a speedy trial violation. People v. Smith (1991), 207 Ill. App. 3d 1072, 1077, 566 N.E.2d 797, 800.

Finally, the State argues that the speedy trial issue is not properly before us because defendant failed to move for discharge on speedy trial grounds prior to conviction. While there is no question that the right to discharge under the speedy trial statute is waived unless a motion to discharge precedes the defendant’s conviction (People v. Howard (1985), 130 Ill. App. 3d 967, 972-73, 474 N.E.2d 1345, 1349), defendant asserts that we should nevertheless consider the issue because the failure of his attorney to raise it constitutes ineffective assistance of counsel. We agree. A defendant claiming ineffective assistance of counsel must show that his attorney’s performance fell below the objective standard of reasonableness and that the defendant was prejudiced as a result. (People v. Enoch (1991), 146 Ill. 2d 44, 55, 585 N.E.2d 115, 120.) An attorney’s failure to seek discharge of his client on speedy trial grounds will constitute ineffective assistance of counsel where there is at least a reasonable probability that the client would have been discharged had a timely speedy trial motion been filed and there is no justification for the attorney’s decision not to file such a motion. People v. Morris (1954), 3 Ill. 2d 437, 452-53, 121 N.E.2d 810; People v. Alcazar (1988), 173 Ill. App. 3d 344, 354-55, 527 N.E.2d 325, 332.

Such is the case here. As we have indicated throughout this disposition, defendant could have secured dismissal of the unlawful possession charge had only his attorney thought to file the appropriate motion. This error cannot be cast as a deliberate strategic choice. Defendant’s attorney announced that he was ready to proceed at the original January 28 trial date and he did attempt to proceed. He had nothing to gain for his client by a delay and, as we have just held, he cannot be deemed to have consented to any such delay.

For the foregoing reasons, the judgment of the circuit court of Randolph County is reversed. In light of this disposition, we need not reach defendant’s additional arguments that the circuit court instructed the jury improperly and erred in considering, or failing to consider, various factors at the sentencing hearing.

Reversed.

H. LEWIS and W.A. LEWIS, JJ., concur.